Introduction

Introduction

One of the most significant developments in recent times in international relations has been the outsourcing to private companies of government functions, such as military services, that were previously the domain of citizen armies under the control of the state. A monopoly on the legitimate use of violence is one of the key features that sovereignty is based on and this shift towards outsourcing violence represents a significant change to sovereignty. The reason for the shift to outsourcing is due to a desire to reduce conventional standing forces while still having the option to call on specialist forces when required. In Iraq the reasons for using private contractors have expanded to include minimising the political risk associated with sending large numbers of soldiers to war, as well as the political benefit of minimising the number of soldiers killed, since contractors’ deaths go largely unnoticed. Private Military Firms (PMFs) also have an enabling effect because they enable policy makers to frequently undertake tasks that would otherwise be impossible, due to the potential political ramifications that would come from initiating certain military actions (Singer, 2007b, p. IV).  The Iraq war has seen a dramatic rise in the use of private contractors for virtually all functions of war, from supplying meals and accommodation to the soldiers to being engaged in lengthy fire-fights against the insurgents and militias. This privatisation of war raises serious questions that have only very recently begun to be addressed. This dissertation aims to investigate the reason why the use of private military firms in Iraq has been so problematic. 

           

Many of the major failures in Iraq have at least partial involvement of PMFs and some of the most serious incidents have arisen directly from the actions of contractors. This was seen in Fallujah where it was a Blackwater convoy that was underprepared that led to the U.S. Marines having to discard their plans of winning hearts and minds and instead led to the virtual levelling of this town in a revenge attack for the murder of the four contractors (Ricks, 2006, p. 313). Abu Ghraib also had contractors from CACI and Titan involved in the torture of prisoners (Finlan, 2005, p. 15). Most recently there was the September 16 2007 incident where members of Blackwater killed seventeen Iraqi civilians in an unprovoked shooting that has led to changes to the laws governing contractors working with the U.S. in Iraq.

           

In order to answer the question of why the use of PMFs in Iraq has been so problematic this dissertation will examine the underlying issues that have created an atmosphere where these kinds of incidents have not only been allowed to happen but have also gone unpunished. Issues such as the failure to adequately screen contractors, the inability to create an effective legal framework for PMFs to operate within, at both the domestic and international level, as well as a total lack of oversight, particularly in the monitoring of contracts, have all been significant causes of the problems that we are seeing today. The introduction of Order 17, by Paul Bremer as he was leaving Baghdad, that granted immunity from prosecution to all contractors, as well as the massive corruption in the allocation and fulfilment of contracts, were other reasons for the problems that developed from the use of PMFs. The issue of ‘cost-plus’ contracts that have made corruption not only easy but highly tempting, will also be discussed. This dissertation will also investigate the deeper issue of the legitimacy of using PMFs and examine the norms that developed around mercenaries which have carried over into the PMF area, despite the industry’s attempts to distance themselves from what they regard as a derogatory term.

            While many of these issues are relevant across the contracting field, this dissertation will focus specifically on PMFs, rather than on the issue of contracting as a whole. PMFs are businesses that conduct:

“active military assistance that have a strategic impact on the political and security environments of the countries in which they operate.” (Isenberg, 2000, p.1).

The issues relating to private contracting in general have been dealt with by a number of books and documentaries whereas the issue of PMF failure in Iraq has not been the sole focus of any one work and has usually been just a chapter of a larger work. Blackwater: The Rise of the World’s Most Powerful Mercenary Army by Jeremy Scahill comes closest to this, however, it is not focused on the PMF industry as a whole. Researching the issues associated with PMFs is getting easier as the topic becomes more mainstream; however, PMFs are still wary of discussing their business with journalists or academics because they fear that no matter what they say they will be represented as modern day mercenaries.

            This dissertation will be structured in the following way: it begins with this introduction and a literature review, after which there will be a short overview of the history of mercenaries, followed by a brief look at recent events that have led to the development of the PMFs that we know today. In this section two companies will be examined:  Executive Outcomes who came to fame through their support for the governments of Angola and Sierra Leone in helping them quash rebel uprisings that threatened the state control of natural resources. The other company examined in this section is Sandline International who also operated in Sierra Leone. Sandline was also involved in a highly publicised failed attempt to assist the government of Papua New Guinea to recapture a copper mine. It resulted in the chief executive ending up in a PNG gaol for a number of days and the rest of his mercenaries deported from the country (Pelton, 2006, p. 268).

Following this there will be a discussion of the legitimacy and norms associated with PMFs including an examination of how the anti-mercenary norm has developed and what effect it is having on the PMF industry in Iraq today. The Clausewitzian model of trinity that is said to exist within a government, the military and the people is also discussed and evaluated to see if there is any linkage between this and the lack of legitimacy that PMFs face in Iraq. The next chapter will discuss the problems created by the lack of laws governing the actions of PMFs in Iraq; where the U.S. government has allowed armed contractors to operate alongside their military with no accountability and no laws to prosecute them should they break the law. This has led to a feeling among the contractors that they are above the law or have a ‘licence to kill’. The result for the Coalition was that the Iraqis turned against the U.S., soldier and contractor alike. The civilians on the ground do not differentiate and hence the actions of one affect the other.

The next section will examine the failure of the U.S. to implement any effective oversight of contracts awarded to PMFs. The lack of oversight combined with the non-competitive issuing of contracts make them wide open to abuse, and has created a highly corrupt environment in which the contractors are operating. Issues such as cost-plus contracts and the problems this has led to will also be examined. The corrupt environment is a danger for both the Iraqi civilian population as well as for the contractors themselves. The civilians are endangered because the contractors are following a very short-sighted mandate, usually the protection of a building or diplomatic staff and are only concerned with that one goal. For the contractor, success comes from ensuring that their short mission fulfils the terms of the contract; this can come at a cost to the long-term military vision because the contractors often are not concerned with issues such as winning hearts and mind as these considerations are rarely, if ever, stipulated in their contracts. The contractors themselves are also at danger from the money hungry attitude that has developed in Iraq. This is because the companies that they are working for could, and have, put lives at risk to save money. Examples of this are having convoys driving empty pallets around to add to costs and not providing contractors with the correct protective resources to do their job safely. A prime example of this is the Blackwater contractors killed in Fallujah.

After this general examination of PMFs in Iraq a case study of Blackwater will be presented. Blackwater has been chosen because it is the largest PMF in Iraq, as well as the most controversial. It has been involved in numerous incidents and has become the most notorious of all PMFs for its cavalier attitude which is evident in the manner by which it carries out its contracts in Iraq.

            Finally, the last section will draw conclusions based on an analysis of the material examined throughout the dissertation. From the previous sections as accurate a picture as possible of the use of PMFs in Iraq will be drawn, and through analytical interpretation, the reasons why the use of PMFs in Iraq has been so problematic will be deduced.

Literature Review

Literature Review

Given the relatively new rise of PMFs into public consciousness there is a very limited pool of academic analysis to draw on at this stage. Thus the research for this dissertation has come from a diverse range of sources. Academic books have been consulted where possible and evaluated alongside newspaper reports of the time to ensure that all information is as accurate as possible. Journal articles have also been a useful source of information, particularly for events that have occurred between 2003 and mid 2007 on which there is a reasonable amount of analysis in the literature. Answering the question of why the use of PMFs in Iraq has been so problematic raises many important themes that will need to be examined. Firstly, questions of legitimacy and the use of private companies carrying out activities that were once solely the domain of the state needs explanation. Secondly, the issue of oversight needs to be examined because the lack of regulation, evaluation and measurement of performance are key reasons for many of the problems created by PMFs. This is because of a lack of due diligence and oversight have lead to two other major themes that will be examined: those of corruption and negative externalities. The way that a lack of oversight breeds corruption is fairly obvious. Without someone checking that what has been paid for is actually provided leaves the door wide open for abuse. The failure to implement regulation of PMFs is also a major reason contributing to the rise in negative externalities. This is because contractors have been given virtually free reign to carry out their objectives with little fear of repercussions if their actions harm the overall goals of the U.S. government and military. The consequence of the growth in negative externalities is that there are renewed calls for laws governing the use of contractors at both domestic and international levels. This will be an important theme in this dissertation. The other consequence is that the loss of legitimacy for the Coalition aides people such as Muqtada al Sadr who can use these incidents as propaganda for attacking the U.S. and demanding its withdrawal from Iraq. Another important theme to be evaluated is the dependency the U.S. now has on contractors and the fact that they would be unable to go to war without them. Finally, to balance the dissertation it is important to recognise the positive aspects that the use of PMFs bring to operations.

The theme of legitimacy is discussed in most of the academic literature on private militaries. One of the leaders in this field is Peter Singer, a senior fellow at the Brookings Institution who published the book Corporate Warriors in 2003 and then republished it with an updated chapter on Iraq in early 2008. Corporate Warriors is a broad look at the issue of contracting and touches on many of the themes raised in this dissertation. Singer discusses the issue of legitimacy, however because the book was written prior to the start of the Iraq war he has not related legitimacy directly to Iraq. It is also not covered in the updated section. While not directly discussing Iraq, some of Singer’s key points about legitimacy certainly apply. The first relates to the change in the U.S. government paradigm that now sees the outsourcing of military services as not only legitimate, but also necessary, to fill a “security gap” created by the end of the Cold War (Singer, 2008, p. 49). The shrinking of the U.S. military combined with the war in Afghanistan created a “security gap” that contractors were able to fill when the decision to go to war in Iraq was made.

Another aspect of legitimacy, touched on by Deborah Avant in her book The Market for Force (2005), is the way that the U.S. government uses private contractors to get around their own concerns or issues of legitimacy that would arise if U.S. soldiers were used. This allows corporate entities to carry out tasks that are too politically sensitive for the government to do (Avant, 2007, p. 4). Percy acknowledges that PMFs suffer from the accusation that they are merely just the newest reincarnation of mercenaries and thus the norms and legitimacy that are associated with mercenaries are also inflicted on PMFs. This is examined in some detail with relation to Blackwater by Jeremy Scahill in his book Blackwater: The Rise of the World’s Most Powerful Mercenary Army (2007a). Scahill points to incidents such as the Blackwater siege as evidence that PMFs are merely modern day mercenaries. At Najaf a lengthy battle ensued which involved Blackwater being resupplied by their own helicopters when the U.S. refused to provide assistance. This kind of operation is much more typical of a mercenary company such as Executive Outcomes, than a company of the type that current PMFs convey, which is of companies involved in purely defensive roles.

The issue of legality is a complex matter. Sarah Percy in her book Mercenaries (2007) discusses the issue of international law and its relation to mercenaries, which is relevant if you perceive PMFs as modern day mercenaries. Percy argues that the conflicting norms that have developed around mercenaries led to weak international laws governing the use of mercenaries (Percy, 2007, p. 169). Percy argues that this conflict of norms is caused by the desire of states to control mercenaries being incompatible with the ideas of Western states on freedom of movement and limited state responsibility. With regards to Iraq, and the legality of the use of contractors, there are numerous articles discussing Bremer’s introduction of the now infamous Order 17 which granted contractors immunity from Iraqi law and created an atmosphere similar to the Wild West where contractors could not be held accountable for their actions (Phinney, 2005, p.1). Singer discusses in Corporate Warriors the fact that despite numerous, very serious, incidents involving contractors, until very recently, no contractor has been charged, prosecuted or punished (Singer, 2007a, p. 251). Only recently have U.S. laws been changed to take account of contractors operating in a war zone. This is covered by Singer in a number of articles (Singer, 2007b, p.1) (Singer, 2007c, p. 1).  In April of this year these new laws were used to charge an interpreter who stabbed a fellow contractor, however, the outcome of this test of the military’s jurisdiction is still unknown.

The next theme to be examined is the issue of oversight. Oversight is about monitoring the whole private military industry, which includes the contractors, the firms providing the services and the contracts that are issued to the firms. Author James Kwok provides some insight into the lack of contractor oversight by bringing attention to the fact that one PMF in Iraq has hired a former British soldier who was thrown out of the Army and served time in gaol for assisting Irish terrorists (Kwok, 2006, p. 37). The issue of monitoring the actions of individual firms has been touched on by authors such as Kevin A. O’Brien who brings attention to the debate between the need for government regulation and the industry push for self-regulation (O’Brien, 2007, p. 57). However, incidents, such as the one caused by Blackwater on the 17^th September 2007, where they killed eight civilians and wounded several others, shine the spotlight on these companies and renew calls for their regulation. Scahill outlines the way that both Congress and the families of dead contractors have tried to bring some accountability to these companies. Law professor Laura A. Dickinson has examined the contract issue by surveying some of the publicly available contracts that PMFs have undertaken in Iraq and found that none of them contained provisions requiring contractors to respect and obey human rights, anti-corruption or transparency norms (Dickinson, 2005). The problem with contracts is also discussed by Mark Hemingway who identifies a major cause of this problem to be the lack of training and competence of the U.S. government’s own contract enforcement officers (Hemingway, 2006, p. 26). This is backed up by Singer who also raises the issue of contract officers and the way the government has actually reduced their staff at a time when their work load is expanding exponentially (Singer, 2007, p. 11).

The issue of corruption is also important to the dissertation because of the opportunity cost it represents. Money that is squandered through contractors billing for services that are not provided or are overcharged could have been used to help rebuild Iraq or provide better equipment for the soldiers. Matt Kelley who is a journalist at USA Today has covered the issue of corruption and the problems faced by the Pentagon in trying to prevent pork barrelling. He quotes the Special Inspector General for Iraq Reconstruction who described the problem of corruption as the ‘second insurgency’ (Kelley, 2007a, p.1).  In investigative articles Kelley has also brought to attention matters such as the large number of contracts that auditors are starting to question and misappropriations from firms such as Kellogg Brown Root (KBR) (Kelley, 2007b, p.1 ; 2007c, p.1). Paul Verkuil in his article Outsourcing Sovereignty (2007) examines the problems caused by cost-plus contracts that “permit and encourage fraud and abuse” (Verkuil, 2007, p. 148). Another major issue is the sole-sourced contracts that the Pentagon is allowed to issue in times when the provision of services is needed at short notice and when a competitive bid process would take too long. Verkuil points out that this process leads to self-interested and arbitrary behaviour. His two conclusions are also important: firstly, while services can be outsourced, the oversight function itself should remain an inherently government function; and secondly, proper contract administration does not guarantee success, however, the failure to use competitive bidding, combined with the inability to enforce contracts guarantees deficient results (Verkuil, 2007, p. 150).

Negative externalities are a central theme to be examined when looking at why the use of PMFs in Iraq has been problematic. A negative externality occurs when the use of a PMF has unintended negative consequences. This is an ongoing problem and a major reason why the use of PMFs is now so problematic. The most obvious examples of which are two incidents concerning Blackwater: in March 2004 when a convoy was ambushed in Fallujah and the bodies of the four contractors were hung from a bridge and the September 2007 incident previously mentioned. These are covered in detail by Scahill as well as extensively in press articles from the time. The other major negative externality concerning contractors was their involvement in the Abu Ghraib scandal which involved contractors from the California Analysis Centre Inc (CACI) and Titan. This incident is covered by Singer (2007) and Avant (2007) as well as by substantial press coverage (Dao, 2004, p.1).

The issue of dependency on PMFs is missing from many publications on this subject. For example, David Isenberg in his article ‘Private Military Companies in Iraq’ published in From Mercenaries to Market (2007) edited by Chesterman and Lehnardt only makes passing mention of the fact  the U.S. went to war without adequate troop numbers and thus became reliant on PMFs. He fails to discuss any of the ramifications of the U.S. now being unable to wage war without them, or what would happen if they were no longer available, as nearly happened when Blackwater had its licence cancelled after the September shootings. Singer’s article Can’t Win With ‘Em, Can’t War Without ‘Em: Private Military Contractors and Counterinsurgency is one of the few articles dealing specifically with this issue of dependence. Singer likens the U.S. to a drug addict and the PMFs to the pushers. Singer, as with Isenberg and Lehnardt, also fails to discuss the problem of what do if a PMF suddenly becomes unable to provide the contracted service. Robert Young Pelton describes this situation in his book Licensed to Kill: Hired Guns in the War on Terror, where a Personal Security Detail (PSD) the U.S. Government hired from DynCorp to protect President Karzai disputed the terms of its contract and the entire team quit leaving DynCorp needing to find a replacement team at extremely short notice (Pelton, 2007, p. 75). Christopher Kinsley in Corporate Soldiers and International Security questions the reliability of contractors, and whether they can be depended on when the going gets tough, because they cannot be ordered into a war zone (Kinsley, 2006, p. 108). Given the recent trend towards hiring cheaper labour for PMFs this certainly must be an important concern and could be part of the reason that the use of PMFs in Iraq has become so problematic.

The academic literature that portrays a positive image of the use of PMFs is also very limited. Most of the books and articles that attempt to persuade the reader of the legitimate and positive role being played by PMFs have been written by people close to the industry. Examples of this literature include A Bloody Business by Colonel Gerald Schumacher (Ret) which describes incidents such as one involving a U.S. sergeant who attributed her training, provided by a PMF, as the reason she not only survived an insurgency’s ambush but was also able to cause significant harm to her attackers, and in so doing became the first female to be awarded the Silver Star (Schumacher, 2006, p. 166). This work is more of a description of how PMFs have had a positive impact. There is very little theoretical analysis of the positive impact PMFs might be having in Iraq or on international relations.

s well as military personnel. It does not require much imagination to see the ways in which the situation in Iraq might be in a better position today had contractors been properly monitored and regulated from that start and that incidents such as the murder of a guard to the Iraqi Vice-President would have been less likely to have happened had these measures been in place.

Historical Perspective

Historical Perspective

The use of private forces in war has a long history that when looked at in perspective shows our current trend of citizen armies to be the exception rather than the norm. There are many examples of the use of mercenaries from ancient history, beginning around about the time of the battle of Kadesh in 1294 B.C where the Pharaoh Ramses II hired an army of mercenary Numidians to help him defeat the Hittites (Taulbee, 1998, p. 145). Other notable uses of mercenaries in ancient history included the use of Cretan’s Slingers, Syracusan Hoplites and Thessalian cavalry that were employed by the Greek’s and the Greeks were similarly hired to fight in other’s wars, such as the Persian civil war (Griffith, 1968, p. 4). The next five hundred years continued this tradition of hiring foreign fighters who were specialists in various areas of warfare. The Macedonians fought for various Greek states around 430 BC, The Punic Wars required a heavy use of mercenaries and even the Roman Empire recruited mercenaries when it served their cause despite being renowned for their citizen army (Delbruck, 1975, p. 250; Singer, 2008, p. 20; Yocherer, 2000, p. 1).  

The tradition of using mercenaries continued into the Middle Ages where feudal lords found that the hiring of forces could fill gaps in their own areas of military deficiency, which is a similar reason given for the hiring of PMFs today (Singer, 2008, p. 22). The use of mercenaries was also favoured in the Middle Ages because the nobility feared arming their own citizens and was also favoured because the nobility sought to minimise the costs that would have been incurred if the whole of society had needed to be mobilised in support of a war (Contamine, 1984, p. 158; Singer, 2008, p. 22). Italy was a wealthy major power at this point in time with wealth held in tradable goods and a citizenry that was considered too valuable to be wasted in warfare, which meant that it was a prime place for the mercenaries of the day to explore (Mockler, 1969, p. 65). Italy was particularly notable in this period because cities such as Venice developed systems to contract out their forces while maintaining careful control over them, which included ways to integrate their successful leaders into the aristocracy (Singer, 2008, p. 23). The Middle Ages was also a period of great instability, plagued by intermittent fighting that led to political circumstances that were very suitable to the private soldier. These mercenaries, or as they were described then, ‘free lances’ were often employed periodically as conflicts required their services. This uncertainty led to the soldiers creating ‘companies’ (from the French con pane which was the bread that soldiers received) which aimed at providing some security for the soldiers in terms of a group to which they could belong. Companies such as the Great Company had nearly 10,000 men in their employment and ran a racketeering operation across, what we now know as Italy, for sixteen years, between 1338 and 1354 (Singer, 2008, p. 25). The mercenaries posed a serious threat to the status quo at the time:

“Feudal ideals of the nobility of birth, land as the basis of authority, the church as an unassailable structure, and loyalty and personal honour as the only motives for fighting were undermined by the fact that the dominant military actors of the period were private companies of freelance soldiers.” (Singer, 2008, p. 24).

            The end of the Thirty Years War and the signing of the Treaty of Westphalia in 1648 signalled the beginning of the end for mercenaries. Armies of foreigners began to be replaced by citizen armies in a move that corresponded with the decline of personal empire and the rise of the state. Other changes such as the French Revolution and the ideas of Enlightenment such as natural law went hand in hand with people’s desire for sovereignty and a system of government based on meritocracy. The development of the social contract was also a key element in driving the shift towards the citizen army. This is because it implied a different type of connection between citizens and their state. As Deborah Avant explains, “If sovereignty rested in the people, the defence of sovereignty was an obligation held by all” (Avant, 2000, p. 44). Previously the arming of citizens had been difficult because subjects were less willing to bear arms to defend a king than they would be as citizens willing to defend their country (Paret, 1992, p. 43). It is not surprising then that the French led the way in establishing a citizen army. This citizen army was tested against the Prussians in the battles of Auerstadt and Jena in 1806 and came out victorious. The Prussians credited this defeat to the French use of citizens rather than private mercenaries and began to re-examine their own army. There are two main advantages to a citizen army: first, there is the motivational aspect of people fighting for their country and second, there should be a numerical advantage in drawing from your own population, however, as has been discussed, there have been some large mercenary armies. It is doubtful though how much either of these two factors played a part in the battles of Auerstadt and Jena. This is because the Prussian commander, the Duke of Brunswick had been deemed incompetent and the time leading up to the battle was wasted debating Brunswick’s tactics of a cautious defence (Avant, 2000, p. 47). Furthermore, King Frederick William III had refused to use spies which denied the Prussians valuable intelligence on French movements. Despite these other possible reasons for the French victories the Prussians chose to focus on the fact that the French were using an army drawn from civilians and chose to pursue a citizen army themselves.

The use of the citizen army reached its zenith with the two World Wars of the twentieth century. The leading nations were able to amass vast military industries based around armies built from their citizens, fighting for their nation. The current trend away from purely citizen armies and back to a dependency on mercenaries to supplement the regular armies represents a three hundred and sixty degrees change in the perception and use of mercenaries on the battlefield. It also probably reflects the difficulty western nations now have in motivating sufficient citizens to participate in wars and hence, raise large enough numbers of citizens for their military needs. It is quite likely that mirroring the rise of the nation state, the twentieth century may be seen as the high point of the citizen army and that it has now gone into decline, while demand for the services of private military companies is booming.

Recent History of Mercenary Activity

Recent History of Mercenary Activity

During the eighties and nineties there were two companies that made a name for themselves in the private military business. Firstly, there was Executive Outcomes (EO), a South African company started by Lieutenant-Colonel Eeben Barlow in 1989.  Eeben Barlow had been commander of 32 Buffalo Battalion Reconnaissance Wing in the South African Defence Force (SADF). When apartheid ended he found himself unemployed and decided to create EO to make use of his military skills. Barlow’s first real breakthrough came when the Angolan rebel group UNITA seized control of the oil port of Soyo. At the time that the port was seized a British businessman named Tony Buckingham had leased oil drilling equipment in Soyo which was sitting idle costing him $20,000 per day in fees. Buckingham and the Angolan government tried negotiating with the rebels, however, they made little progress. The Angolan military lacked the capability to retake the port so Buckingham turned to an old acquaintance, Simon Mann, who introduced him to Barlow. Prior to this EO contracts had been relatively small and usually involved training or small scale protection from cattle rustling. The contract to help Angola and Buckingham now placed Barlow in the situation of fighting against the same people with whom he had been allied when he was a South African soldier. This did not prevent him from taking the contract and has led to a view of EO being closer to a mercenary outfit than a PMF (Pelton, 2007, p. 256).

The initial contract was for $10 million and was paid by the state oil company Sonangol directly to EO. This then enabled Mann and Barlow to begin recruiting which was relatively easy given the number of soldiers out of work since the end of apartheid. Within a short period of time the operation to retake Soyo began and was over just as quickly with the successful capture of the port. EO withdrew and left security of the port in the hands of the Angolan military. A few months later UNITA had again regrouped and retaken the port. The leader of Angola, Jose Eduardo dos Santos, could see that his military required a long-term solution and engaged EO to provide training and support. This time however the contract was much larger and eventually came to be worth around $300 million over three years. By November of 1994 the actions of EO and the Angolan army had removed UNITA from all of the diamond producing regions and had forced them to the negotiating table. One condition that the rebels had specified was the need for EO to leave the country. This was backed up by the United States who threatened to deny aid to Angola unless EO was replaced, by an American firm, MPRI (Pelton, 2007, p. 260). In many ways EO opened the doors for companies like Blackwater to come along later. This is because EO was the first to publicly advertise its services without trying to mask them as something more palatable. This even went so far as an EO website featuring photographs of tanks, aircraft and combat capabilities. Furthermore, they used the media to popularise their services and publish articles sensationalising their successes in Angola. It was through these marketing methods that their next big assignment came about.

Sierra Leone was also battling rebels who were cutting off the government’s access to natural resources such as diamonds. By April of 1995 the RUF rebels were at the edge of Freetown and were looking like they would capture the capital at anytime. Initially, Sierra Leone had hired a PMF called Gurkha Security Group to provide security, however, a well planned ambush by the rebels had killed a number of Gurkha’s including their leader. The Gurkhas then decided to withdraw which meant that a replacement was needed. As EO’s contract in Angola was nearing completion it came at a perfect time for the company and provided them with a $35 million contract for 21 months work (Pelton, 2007, p. 262). Within a few weeks the EO team had secured the important diamond fields as well as large swathes of the countryside. Although largely successful, the rebels were not wiped out and were able to regroup, because President Kabbah, facing international pressure over the use of mercenaries terminated EO’s contract early, in the belief the UN was going to send in peacekeepers. Despite EO’s warning to the President that another coup attempt was likely if they withdrew the EO contract was not renewed. Some mid-level army officers colluded with the rebels and ninety five days after the withdrawal of EO the government was toppled. Renegade soldiers and RUF fighters combined forces in attacking the civilian population of Freetown in what they dubbed “Operation Pay Yourself”. Mass human rights violations occurred, with one of the most frequent being the removal of people’s hands. Kabbah then turned to Sandline International to restore order and reinstate him back into government. Singer has speculated that the reason for not bringing EO back in was due to a reluctance to use the highly publicised firm, or, a legacy of negative relationships between Kabbah and EO meant that they could no longer do business (Singer, 2008, p. 115). By March 1998 Sandline had started operating in Sierra Leone and was eventually successful in driving the rebels from the capital and in the process began building its own reputation and business.

Sandline International was formed by a former Scots Guard Lieutenant-Colonel called Tim Spicer. Spicer had served with Mann and had been offered a position within EO which he had declined because he was still an active member of the British military. After leaving the military he was again approached by Mann, this time to create a PMF that would “add a more palatable layer of Western executive management to outsource the more mercenary concept of EO” (Pelton, 2007, p. 265). Their break came from connections with Lord Westbury whose PMF, DSL, had been working in Papua New Guinea (PNG) was asked to assist with securing the Panguna copper mine. Lord Westbury passed this opportunity along to Mann who asked Spicer to contact the PNG government. Spicer carried out an initial appraisal of the situation in PNG and came back to the government with a quote of $36 million to recapture the mine and train PNG Special Forces. The government could not afford that amount so Spicer turned to Buckingham who had made considerable money from the mining rights associated with EO’s involvement in Angola and Sierra Leone. On the 7^th of February the first mercenaries from South Africa began to arrive in PNG, however, by the 19^th the PNG government had mentioned to the Australian government that it had engaged the firm to provide training. This reached the Australian press shortly afterwards and started a scandal. When the PNG military heard that the government planned to pay Sandline $36 million, the head of the PNG Defence Force, Jerry Singirok, decided to deport them and arrest Spicer. Singirok demanded that PNG Prime Minister Chan and his defence and deputy prime minister resign, however, Chan responded by sacking Singirok. Singirok’s soldiers took to the streets in support of him as the country headed towards civil war (Pelton, 2007, p. 269). This provides a very clear example of the way that a PMF can have unintended and unpredictable consequences.

Legitimacy & Norms Surrounding PMFs

Legitimacy & Norms Surrounding PMFs

The perception of PMFs as modern day mercenaries, that lack legitimacy under our Westphalian system, is a key reason contributing to their failure in Iraq. As noted in the history section, mercenaries have a long history of involvement in international affairs and as Janice Thompson has noted, it took a lengthy process to delegitimize non-state violence and bring about the monopolization of force by the state (Thompson, 1994, p. 149). This is due in part to the norms that have developed from the Clausewitzian model of the ‘remarkable trinity’ that Clausewitz claimed existed within a nation among the government, the military and the people (Grant, 1998, p. 3). This is the concept that the application of a nation’s inherent military power should remain a controlled monopoly of the state (Goddart, 2001, p. 46). PMFs fall outside this model and therefore their use of force and conduct of military activities can be seen as illegitimate. This has helped to create the anti-mercenary norm that exists today. An example of the problem that PMFs have with legitimacy was seen when militant leader Moqtada al Sadr used their dubious status in the wake of the September 16 Blackwater shootings as a reason for demanding the removal of all foreign security contractors from Iraq (IHT, 2007, p. 1). Even though al Sadr himself falls outside this model he is able to claim legitimacy due to his family background and work within the Shiite community (Escobar, 2004, p.1). Thus, we can conclude that legitimacy in some parts of the world comes from more than just an organisation claiming to represent its people. In countries such as Iraq, legitimacy comes from being seen as ‘one’ of the people that you are representing as well as from working for tangible benefits to the people’s daily lives. For this reason it is clear that contractors will never hold legitimacy in the eyes of the Iraqis because they will always be seen as ‘outsiders’ who are only interested in their own gain.

Today’s anti-mercenary norm has also come about due to the belief that mercenaries are undesirable because they threaten state control by challenging their sole legitimacy and authority over the use of force as well as the fact that they are generally regarded as fighters without an appropriate cause (Percy, 2007, p. 203). This is an appropriate norm for states to develop considering the history of mercenaries. The King of France in 1362 attempted to wipe out the Free Companies, however, the assorted units united into one army and crushed the King’s feudal army at the battle of Brignais. Subsequently, the king started wars in Spain and Hungary as a way of moving the companies outside France before they could end his reign (Singer, 2008, p. 25). Thus it is understandable, from a realist perspective, that states who are already under threat from so many different aspects of modern society, would feel threatened by the rise of PMFs. Colonel Bruce Grant, who has been commenting on the PMF industry since the late 1990s, argues that a government’s military has legitimacy because the military profession is traditionally unique from all other professions because there are no comparable commercial services available to a nation’s military power and that military power is only exerted on the formal direction of Government (Goddart, 2001, p. 46). PMFs challenge this view of the legitimate use of force because they conduct some of the roles of the military for monetary gains and are “…not bound by the codes, rules and regulations that make the military unique” (Goddart, 2001, p. 46). Even though PMFs are conducting some of the roles of the armed forces, it is highly unlikely that PMFs will attain the level of legitimacy that has been enjoyed by national militaries because they “…contradict the military ethic of selfless service” (Goddart, 2001, p. 47).

It is also doubtful whether PMFs seriously challenge any but the smallest sovereign states. The costs of modern military equipment make challenging sovereign states extremely difficult because it is highly unlikely any organisation could afford a fleet of state of the art aircraft such as the F/A 22s, which would be a minimum requirement for challenging a moderately powerful government (Krishnan, 2008, p. 151). Furthermore, the export of this hardware is controlled by states. Many PMFs also clear all their contracts with foreign governments and their own government, prior to signing the contract. An example of this is MPRI who clears all foreign contracts with the State Department before signing a contract (Lanning, 2005, p. 198). Private corporations also lack the legitimacy to employ force in the way states use force. Given that these corporations are driven by profit and the biggest contracts are coming from sovereign sources, it is highly unlikely that these corporations would risk losing their legitimacy in the eyes of a country like the U.S. Thus, as Krishnan argues, rather than sovereignty being threatened,

“...sovereignty becomes transformed and more limited by the emergence of complex national and international networks of action, institutions and regulations” (Krishnan, 2008, p. 152).

With the rise of globalisation and rapid advances in fields such as transportation and communications notions such as neo-medievalism, which was largely introduced by Hedley Bull, are gaining increasing significance (Gilpin, 2002, p. 243). It is possible that the rise of PMFs is merely just the next step in the evolution of neo-medievalism. Bull predicted that the direction of international relations would move towards a system of:

“horizontal networks composed of states, non-governmental organisations and international institutions [...] (sharing) authority over individuals.” (Gilpin, 2002, p. 243).

Hedley Bull predicted five major harbingers of neo-medievalism. These trends are the regional integration of states, disintegration of states, restoration of private international violence, transnational organisations and technological unification of the world (Bull, 1977, pp. 264-276). Clearly each of these has had a significant role in reshaping the world away from the realist’s view that states are the only significant actors in international relations. PMFs apply to both the restoration of private international violence as well as transnational organisations. Thus, from a realist’s perspective, PMFs pose a challenge to state sovereignty on a number of fronts, principally by attempting to assume the role of a legitimate force which has traditionally been seen as a function or even a defining characteristic of the sovereign state. This is a key reason states have a vested interest in promoting the anti-mercenary norm.

The anti-mercenary norms were also reinforced during the 1960s and 1970s when mercenaries built their reputation as guns for hire who were solely motivated by profit. In the mid 1990s companies such as Sandline International and Executive Outcomes attempted to distance themselves from their predecessors so that these norms would hopefully not stick to their businesses as well. These companies hoped to distance themselves from their mercenary predecessors by promising business-like solutions to conflicts, however, they soon became embroiled in various scandals and were subsequently seen as being little different from their forebears. Today’s PMFs are trying, as the companies of the 1990s did, to convince the public that they are professional and reputable organisations that are a viable alternative to traditional militaries. Percy argues that because the norm against mercenaries has now reached a puritanical level which prevents clear thinking and a negative view has become so automatic, that considerations such as the necessity of use are no longer taken into account (Percy, 2007, p. 220). This is regardless of whether their use is for stopping a war or war lord, or whether it is for promoting war.

One of the main problems afflicting PMFs in Iraq is their lack of perceived legitimacy by both the Iraqi citizens and from within the ranks of the U.S. military. It is, as Alastair Finlan points out, highly questionable whether former soldiers working for money will not be perceived by indigenous people as simply mercenaries (Finlan, 2005, p. 15). In addition to this, PMFs in Iraq have suffered legitimacy problems due to their legal status of being ‘above the law’. The fact that contractors are virtually never held accountable for their actions has lead to them being perceived by the local Iraqis as foreign criminal firms who have no interest in the country other than enriching themselves (Agencies, 2007, p. 1). It can be argued that the very presence of contractors is undermining the moral authority of the occupation forces (Finlan, 2005, p. 15). These negative connotations feed into the view and reinforce the norms that have developed around mercenaries, that they are self-interested ‘guns for hire’ who care only for personal gain and will fight for whoever pays them.

The PMF industry is attempting to counter this norm by claiming that they are different from their predecessors because they do not engage in offensive combat operations (Percy, 2007, p. 225). This, however, is a difficult claim to make in environments such as Iraq because what might have been a defensive contract to guard civilians or buildings could turn into a serious incident, blurring the lines between offense and defence.  An example of this can be seen with regard to Blackwater in Najaf when they were guarding a U.S. base that was attacked by the Shiite militia. The fight turned into a lengthy battle and is discussed at length in the Blackwater case-study. Ultimately, the aim of the PMF industry is to position PMFs as businesses that are professional organisations, far removed from their mercenary predecessors and to create the impression that they are legitimate businesses. The main benefit for the industry in seeking legitimacy is that it will lead to greater profits as they will be used by more governments and organisations who might not have hired them in the past because of the norms surrounding mercenaries and the stigma attached to them. Currently, Blackwater is trying to promote its services to humanitarian organisations and the UN (Robertson, 2008, p. 1).

In Iraq PMFs have had some success in securing contracts with non-government organisations (NGOs) because the situation has been so dangerous that conducting operations without them would be too risky (Avant, 2006, p.1). While NGOs have used PMFs for security, they also express their ‘feelings of horror and outrage’ over having to work with them and fear the negative publicity that could result from their relationship with PMFs (Beese, 2006, p. 1). The other potential benefit of being seen as legitimate entities in Iraq is that they then might not be such a tempting target for the militias and insurgents. Given the numerous atrocities that have been committed by PMFs such as the Blackwater shootings at Nisour Square or the ‘trophy video’ published on the internet of Aegis contractors shooting randomly at civilians from their vehicles, it is quite likely that any hope for being seen as legitimate by the indigenous Iraqis has now been lost.

use his company is privately held. The new law means that companies would have to disclose this information if they are receiving more than eighty percent of their income from the U.S. government or if they receive more than twenty five million dollars in government contracts in any fiscal year (Wittenberg, 2008, p.1). These new laws go some way towards redressing the imbalance under which contractors and PMFs have operated for the last five years in Iraq.

Legality Governing PMFs

Legality Governing PMFs

Legal reforms to deal with mercenaries in recent times began in the 1960s as a result of the ‘spectacular’ re-emergence of mercenaries in Africa following the decolonisation of many African countries, particularly the Congo (Percy, 2007, p. 167). African countries were the main proponents pushing for the creation of international law to outlaw the hiring of mercenaries (Percy, 2007, p. 169). This raises the question of whether other countries had an objection to mercenaries and whether mercenaries should be illegal if most countries do not have any serious objections to their use. It is not possible to answer these questions thoroughly because it is outside the scope of this dissertation, which is focused on why the use of PMFs in Iraq has been so problematic. However, it is worth considering where these laws and norms have come from because they affect PMFs in Iraq today due to the feelings Iraqis have about mercenaries. The lack of laws governing PMFs also has a direct affect on the local Iraqi population who, for example, can be harassed on their roads by PMF convoys; that is, by people who can do as they please because they have no fear of being arrested or charged because they are beyond the reach of the law.

If states no longer object to losing their monopoly on the legitimate use of force and are prepared to tolerate and even hire PMFs then it is possible that the anti-mercenary norm will dissolve. This could lead to changes in international law that group mercenaries and PMFs together. The main factors to be considered would be whether PMFs are different from their mercenary predecessors and what methods would be effective in regulating them and holding them accountable for any crimes they commit. Evidence for this change in attitude and norms comes from Sarah Percy’s book Mercenaries in which she argues that the countries pushing recent international laws governing mercenaries such as Article 47 of Protocol I of the Geneva Conventions are limited to African countries (Percy, 2007, p. 169). Furthermore, International lawyer Antonio Cassese argues that the law was intentionally left full of loopholes by states who did not necessarily agree that mercenaries were a bad thing and in actual fact pursued the creation of this law to protect themselves from mercenary attacks while retaining the right to use mercenaries themselves (Percy, 2007, p. 169). However, if you still retain the right to use mercenaries, it is doubtful how much protection you have from them in the first place. There were also other inconsistencies with the international laws governing mercenaries. One of the major inconsistencies was the way that a mercenary was defined. While developing Article 47 the Working Group responsible for its creation defined a mercenary as a person ‘who is motivated to fight essentially or primarily by the desire for...“hard cash”’ (Percy, 2007, p. 177). The introduction of motivation into the Article ran counter to the rest of the Protocol which aimed to protect all combatants from a humanitarian point of view and not discriminate on the basis of motivations (Percy, 2007, p. 178). It was also accepted that trying to prove someone’s motivations would be inherently difficult if not impossible (Percy, 2007, 177). Other clauses such as allowing states to integrate foreign individuals into their national armies has further weakened this attempt at outlawing mercenaries which, contrary to common belief, has resulted in there being no total ban on mercenaries in international law (Singer, 2004, p. 531).

            The failure of international law to properly categorise and regulate mercenaries has flowed directly into the legal limbo in which PMFs have been operating since their emergence in the early to mid 1990s. Early attempts to address this, such as the UN passing the Mercenary Convention in 1989 have largely failed for similar reasons to the flaws in Article 47. The mercenary image has still maintained its negative connotations, which lead firms like Executive Outcomes and Sandline International to distance themselves from this ‘gun for hire’ image of mercenaries. Instead they try to convey themselves as legitimate businesses offering practical solutions to legitimate governments and entities. This has only been moderately successful. Episodes such as the 1997 arrest of Sandline’s Tim Spicer in Papua New Guinea and more recently the arrest of Simon Mann, the former SAS Officer who was involved in a plot to overthrow the government of Equatorial Guinea has led to questioning whether these ‘new’ PMFs are really any different from their mercenary predecessors.

            It could be argued that we are now in our third stage of mercenaries in recent history. The first stage consisted of the mercenaries who roamed Africa in the 1960s offering to work for whoever would pay them the most and included individuals such as Bob Denard, the inspiration for Frederick Forsyth’s 1974 novel, The Dogs of War. The second stage was relatively brief and occurred between the early 1990s and the early 2000s, with the closure of first Executive Outcomes and then Sandline International. The rise of companies such as Blackwater and the boom in PMF services as a result of the wars in Iraq and Afghanistan represent this new third stage. This new stage has brought significantly more attention and examination of the laws governing mercenaries and PMFs than seen in the previous stages. This is due to a number of reasons. PMFs are operating for Western governments, principally the United States and so it is not surprising that there is now worldwide attention on the fact that this industry is completely unregulated at the international level, it involves billions of dollars, has caused changes to the course of the war in Iraq, is heavily depended on by the U.S. government in its operations around the world, and has, in Iraq, operated above the law.

            One answer to the problems of governing PMFs through international law would be to try and regulate them at a national level. Singer defines three fundamental problems with this approach that undermine any effective legal regulation of PMFs (Singer, 2004, p. 534). Firstly, PMFs are service-oriented businesses that operate at a global level with only a small infrastructure that gives them the ability to relocate to a friendlier environment should one state start to put pressure on them. An example of this is Executive Outcomes who were based in South Africa when the anti-mercenary law was passed and who closed the business in South Africa and moved to other countries under other names such as Lifeguard or Saracen (Sourcewatch, undated, p. 1). Thus the result is largely to drive PMFs underground and away from public scrutiny. Secondly, problems arise with the issue of enforcement due to the fact that these companies are usually operating in failed states or conflict zones where local authorities lack the power to control these companies. This has been particularly evident in Iraq with companies such as Blackwater who despite their numerous scandals and the threats of the government to withdraw their licence are still operating largely unhindered. Thus enforcement must be extraterritorial which raises other problems such as should the PMFs be subject to military or civilian law? Or how do you deal with the problem of gathering evidence and bringing witnesses back to the home country should a crime need to be prosecuted? Other tactics such as establishing subsidiaries registered in other countries can make the matter even more problematic and the ‘fog of war’ can also cloud issues and make enforcement near impossible when dealing with legal issues in a war zone. Thirdly, domestic laws often fall well short of what is required to govern the PMF industry. For example, in the U.S. the Neutrality Act prohibits the recruitment of mercenaries within the U.S. but not the sale of military services. Similarly, until recently the Uniform Code of Military Justice (UCMJ) only covered the military but not any civilians accompanying the soldiers overseas. The result has been that contractors to PMFs are only beholden to local laws which are usually unable to be enforced, or the PMF can simply remove the individual from the country before they can be arrested. In Iraq this went one step further with Paul Bremer issuing the now infamous Order 17 which gave all contractors immunity from Iraqi law and has been a major reason for the failings of PMFs, because they were able to operate as they pleased without fear of any kind of reprisal.

            The last five years of war in Iraq and the corresponding rise in the use of PMFs has led to a number of changes to the way that the U.S. seeks to govern their employment of PMFs in Iraq. The lawless beginnings under Bremer that led to the contractors being despised by the local Iraqis for their unaccountability (Fainaru, 2007, p.1), followed by the abuses at Abu Ghraib of Iraqi prisoners by contractors from the firms CACI and Titan (Dishneau, 2008, p.1) has led the U.S. to make some progress with changes to the UCMJ. The changes, which came into force at the start of 2007 have broadened the Code to cover contractors and others who accompany the military on operations. Thus the contractors in Iraq should now be under the same set of military laws that govern the armed forces (Singer, 2007a, p.1). Singer makes a number of points about the change to this law. This change to the UCMJ represents the biggest step to bring PMFs under control since the start of the Iraq War in 2003. It now allows military officers to prosecute contractors for crimes. It represents a big step forward from the Military Extra-Territorial Jurisdiction Act (MEJA) that had been previously held up as the answer to regulating contractors but was in fact full of legal holes and ineffective. The law also highlights the fact that Congress has now become aware of the problems caused in Iraq by having armed contractors not bound by any laws or regulations. The U.S. military might now start questioning the role that contractors are playing and asking whether some of their roles should be only for the uniformed military. This could lead to a roll-back in contractor roles and responsibilities.

            The real evidence of progress will come when contractors are actually charged under these laws. There has been virtually no prosecutions of contractors since the 2003 invasion. The first was of an Iraqi-Canadian contractor who was working with the U.S. military as an interpreter, who was court-martialled for stabbing a colleague at an outpost near Hilt, about ninety miles outside of Baghdad (Zavis, 2008, p. 1).  Other prosecutions are also possible in the near future with the Department of Justice investigating the Christmas 2006 killing of a guard to the Iraqi Vice-President by a Blackwater contractor. Currently investigations are still being conducted by the F.B.I. however it could be used as a test case if issues of jurisdiction can be cleared by the courts (Associated Press, 2008, p.1). Another law that has recently been approved by the U.S. House of Representatives aims to give greater disclosure to Congress about the financials of companies involved in the PMF industry. Recently when Representative Christopher Murphy tried to question Blackwater’s CEO Erik Prince about his company’s profits Prince refused to answer the questions because his company is privately held. The new law means that companies would have to disclose this information if they are receiving more than eighty percent of their income from the U.S. government or if they receive more than twenty five million dollars in government contracts in any fiscal year (Wittenberg, 2008, p.1). These new laws go some way towards redressing the imbalance under which contractors and PMFs have operated for the last five years in Iraq.

Oversight: The Need for Transparency and Monitoring of PMFs

Oversight: The Need for Transparency and Monitoring of PMFs

One of the main reasons that the use of PMFs in Iraq has been so problematic is due to the complete lack of oversight and monitoring of the contracts handed out to them. Even in 2002, before the start of the Iraq War, U.S. Army Secretary Thomas E. White stated that the army did not have enough information to manage its rapidly growing numbers of contractors (Green, 2004, p. 1). When looking at the contracting business as a whole the BBC television program Panorama recently  reported that an estimated $USD 23 billion has been wasted, stolen, embezzled or just lost since the beginning of the Iraq War (Panorama, 2008). The huge numbers of contractors involved in the Iraq War and the widespread war profiteering has led to the Coalition of the Willing being redubbed the “Coalition of the Billing” (Singer, 2005, p. 122). Furthermore, the Special Inspector General for Iraq Reconstruction (SIGIR) considers the corruption inside the contracting business in Iraq so great that he has described it as the “second insurgency” (Kelley, 2007, p.1).  With contractor numbers now exceeding that of American combat troops Iraq has become the largest private military market in modern history (Miller, 2007, p.1). This makes the need for careful monitoring and oversight even more important.

Sarah Percy argues that at present the regulation of PMFs at the domestic, international and informal levels is deficient (Percy, 2006, p. 15). There are five main reasons for regulation of the PMF industry. Firstly, the privatisation of military force challenges both political and military control of force. There are three different types of state control over force. Functional, which is the effectiveness of the military; political, which defines the actors, organisations or individuals who control force; and social which is the degree to which the use of force is congruent with broader social values, including democracy, international law, human rights and the protection of civilians in warfare (Percy, 2006, p. 16). These controls should all work together to achieve a ‘good fit’ which results in stable, legitimate and effective civil-military relations. Privatisation of security will affect this balance differently in weak and strong states, however, all three types of control are transformed by privatisation, as is the way they fit together (Percy, 2006, p. 16). One area of great importance in regards to control of violence is the way that privatisation undermines the political safeguards that have been established to make it difficult for someone in power such as a president to launch military actions without the support of their elected representatives. Privatisation undermines these safeguards because there are not the same laws governing the signing of contracts with PMFs as there is when starting a military action with conventional forces. Other less direct methods are also possible through privatisation. An example of this was during the Balkans War when MPRI assisted the Croatians who then turned the tide of war against the Serbs who were not used to fighting a coordinated enemy. This military assistance was carried out away from the public and without congressional debate or oversight (Avant, 2005, p. 128).

The second reason that Percy gives for the need for regulation of PMFs is to improve clarity. By clearing up areas of confusion or complication the battlefield should become safer for contractors, soldiers and civilians (Percy 2006, p. 18). Clarity is also required so that the status of contractors on the battlefield is known to all.  It is also a way to differentiate the responsible PMFs from the ‘cowboys’, and on a personnel level, a procedure needs to be developed for sorting the good contractors from the bad. In Iraq the Blackwater contractor who killed one of the guards to the Iraqi Vice-President was back working in Iraq within two months because there was no system to check the background of contractors (Associated Press, 2008b, p. 1). Similarly, there needs to be either a mechanism or an incentive to stop contractors from switching between PMF and mercenary businesses. This switching was seen during the Kosovo war when former MPRI employees became freelance military advisors to KLA (Avant, 2005, p. 222). Clarification also refers to the need to define contractors in international law to determine whether they are civilians, lawful combatants or unlawful combatants. This is important due to the need to keep contractors accountable for their actions. While contractors working with the U.S. government can now come under the UCMJ, contractors who might be working for other governments or private businesses are still unaccountable.

The third reason for increasing regulation is to provide greater transparency. The PMF industry is shrouded in mystery which is due both to the secrecy of some contracts as well as the incompetence of those who should be monitoring basic information such as the total number of contractors being used for each contract, length of time they are working in Iraq and the value and scope of the contracts. Without reliable statistics and information on the industry, organising effective oversight is much more difficult and it reduces the capacity of governments to make good informed decisions about the use of PMFs. This information is also needed so that policy makers can evaluate the use of contractors from the bigger picture perspective. Only with an accurate view of the contracting business can objective policy be formed regarding whether widespread privatisation is advisable (Percy, 2006, p. 21).

There is also a need for transparency so that the claims made by the PMF industry about the cost savings that contractors offer can be independently evaluated.  The PMF industry claims that it provides savings because contractors can be brought in at short notice and do not need to be kept on payrolls and fed and housed for many years as national soldiers do. They also claim that skills can be brought in as required which saves government on these costs, however, the problem with this analysis is that the PMF industry  

“…uses public funds to provide higher pay and then charges back the military at a higher rate, all for the human capital investment that the public institution originally paid for” (Singer, 2004c, p. 16).

Given the allegations about fraud and corruption that are coming to public attention across the whole of the contracting business in Iraq it seems highly unlikely that contracting military and other services is actually cost effective (Dickinson, 2007, p. 6).

The fourth reason for regulating the PMF industry is accountability. Contractors need to be accountable to the same standards as regular soldiers. Without accountability there are no boundaries on what they can do and, as has been seen, no disincentive for committing crimes such as the Blackwater shootings or Abu Ghraib abuses. Finally, the fifth reason that Percy gives for regulating the PMF industry is to shape its future growth. This is largely about determining what is an appropriate level of privatisation for the future. There is also a need for further debate about the appropriateness of outsourcing inherently government functions. Percy argues that without this regulation growth of the industry will evolve unchecked and unmonitored (2006, p. 23).

Due to the Pentagon’s need for services in a hurry, billions of dollars in contracts were awarded as “cost plus” which means that whatever costs are accrued by a business the Pentagon will meet these costs and then pay a percentage  on top. This has encouraged companies to conduct operations in a wasteful manner because the more they spend the more they make. Examples of this are companies such as KBR who would move empty pallets around so they could bill the U.S. government to increase their profits (Private Warriors, 2005). On top of this flaw in the original structure of many contracts was the problem that the government had not put in place any real mechanisms for oversight and monitoring of the contracts to make sure that public money was not being wasted. At the start of the Iraq war the Government Accountability Office (GAO), which was responsible for conducting audits of the $18 billion in contracts had only five staff members which were increased to fourteen by 2004 (Singer, 2004, p. 26). Clearly the Bush administration was negligent in not ensuring there was appropriate due diligence and that the tax payers of the U.S. were not being ripped off. David Isenberg is correct in his claim that when this lack of oversight is known it will be easier to understand how the abuses at Abu Ghraib could occur because there was very little, if any, monitoring of the contracts, as well as a lack of vetting of individual PMF personnel (Isenberg, 2007, p. 87). One step that the U.S. government took early on was awarding a $293 million contract to Aegis Defense Services to coordinate all the PMFs operating in Iraq. Singer described this as “…logic that would do Kafka proud” (Singer, 2004b, p.1). Unfortunately, even in 2008 it appears that the U.S. government is still relying on private contractors to monitor other private contractors. In April the Pentagon awarded its largest military contract in Iraq to KBR, Fluor and DynCorp with another contract going to the British company Serco for managing and overseeing the other three companies, in conjunction with the U.S. Army (Schewar, 2008, p.1).

The problem with a lot of the US Government private contracting in Iraq is that the corruption appears to run from the top down.  This is a classic example of the ‘fish rotting from the head’. Secretary of Defense Donald Rumsfeld appointed Joseph Schmitz to the role of Inspector General in June of 2001. He was in charge of “prevention of fraud, waste, and abuse in the programs and operations” of the Pentagon (Scahill, 2007a, p. 305). The Los Angeles Times investigative journalist  T. Christian Miller published an expose on Schmitz whom he alleged “…slowed or blocked investigations of senior Bush administration officials, spent taxpayer money on pet projects and accepted gifts that may have violated ethics guidelines” (Miller, 2005, p. 1). Furthermore, Schmitz’s investigators became so worried about his loyalties that they stopped discussing whom they were investigating with him, and resorted to using code words, for fear that Schmitz would tip off his Pentagon superiors (Miller, 2005, p. 1). It seems that Schmitz was largely a political appointee who was friendly with the Bush Administration and would look after his own. This is a common theme running through Bush appointees and can be seen with regard to other appointees such as the Federal Emergency Management Agency (FEMA) who was headed by Michael Brown, a friend of Bush who lacked the proper skills for the job. This resulted in FEMA being heavily criticised for its performance during Hurricane Katrina (Ahlers, 2006, p. 1). Schmitz would also prove where his loyalties lay when he was asked to investigate Republican Neoconservative Richard Perle when Perle was implicated in a conflict of interest scandal.  Perle was an advisor to a telecommunications company called Global Crossing while also working as the chairman of the Defence Policy Board. He was retained by the company to try and get the Defence Department to drop its objections to Global Crossing being sold to a foreign firm. If the sale proceeded Perle stood to make $725,000 (Scahill, 2007a, p. 307). Representative John Conyers called on Schmitz to investigate Perle, who after a six-month investigation concluded “We have completed our inquiry regarding the conduct of Mr. Perle and did not substantiate allegations of misconduct” (Labaton, 2003, p. 1). Given this level of corruption at the highest levels in the Pentagon it is not surprising that such war-profiteering and abuse of contracts has occurred.

It should also be noted that when Schmitz left the Pentagon he found employment with Blackwater. This seems to be a familiar path for former officials who look after these companies while in office, on the proviso that when they leave they will be rewarded with a high-paying senior role at the company. A similar situation occurred with Edward C. Aldridge who was President Bush’s chief weapons buyer at the Pentagon. On his last day in the Pentagon before starting a job with weapons manufacturer Lockheed Martin he approved the Pentagon’s largest lease agreement to date, a $30 billion deal to lease military tanker planes from Lockheed Martin (Daniel, 2003, p. 19).

 One of the major problems with contracts in Iraq has been the way in which they have been awarded without competitive tendering. The Pentagon has claimed that this is because in times of war there is not sufficient time to go through the usual tendering processes and thus it is acceptable to pay a higher price in order to have the services delivered rapidly and often in hostile conditions (Kroft, 2003, p. 1). PMFs have certainly benefited from these types of contracts which are usually more lucrative than standard contracts. A great deal of work for the SIGIR has been created by much larger contracts which have gone to companies such as KBR and Halliburton, sometimes described as the ‘usual suspects’ (Matthews, 2005, p.1). This has meant that the contracts to PMFs have received little attention because they are

not on the same tier as the contracts to the ‘usual suspects’ and are thus susceptible to falling through the cracks (Isenberg, 2007, p. 87).

The other issue that arises as a result of a lack of monitoring and oversight is what

Singer labels as ‘negative externalities’, specifically, events that occur that are out of

your control (Singer, 2004d, p. 1). Examples of this are the lawlessness of private

contractors in Iraq due to the failure for so long to have them under any laws or

regulations. Other examples are Abu Ghraib and the flow on effects from the scandal there which had the involvement of private contractors as well as military personnel. It does not require much imagination to see the ways in which the situation in Iraq might be in a better position today had contractors been properly monitored and regulated from that start and that incidents such as the murder of a guard to the Iraqi Vice-President would have been less likely to have happened had these measures been in place.

Case Study: Blackwater

Case Study: Blackwater

The PMF Blackwater has become one of the best known players in the contracting business, largely through its infamous reputation as a company that has been awarded hundreds of millions of dollars in U.S. government contracts while having little regard for human life, being described as “...the whores of war”(Scahill, 2006, p. 17). On numerous occasions the contractors employed by Blackwater have shown little regard for Iraqi civilians and have caused some major incidents that have derailed the U.S. military’s ‘Hearts and Minds’ campaign and led to other setbacks in the war. This has resulted in a general perception that the firm is ‘gung ho’ (AFP, 2007, p.1) and is only concerned with maximising profit at the expense of people’s lives and the overall objective to make Iraq a better place.

Blackwater International was founded as Blackwater USA in 1997 by Erik Prince and Al Clark. Erik Prince is a former Officer in the U.S. Navy SEALs. While Prince was serving in the SEALs his father passed away leaving him his business estimated to be worth over $500 million dollars. The combination of his father’s death and his wife developing terminal cancer provided the catalyst for Prince leaving the military. Following his discharge he returned home to sell his father’s business and establish Blackwater USA. Drawing on the contacts he had made as a SEAL he was able to not only build expertise and see opportunities, but to use these contacts to win government training contracts and begin building his business (Scahill, 2007a, pg 33). It is also worth noting that Prince comes from a right-wing Christian family who are significant donors to the Republican Party. This is important because it provided additional very direct connections into the corridors of power in Washington D.C. Prince was later able to use those connections to win large contracts with the military and government. It is also significant because Prince who has extreme right-wing Christian beliefs would soon be in charge of one of the most powerful private armies in the world and would be waging war in Muslim countries, in the wake of the September 11 attacks. President Bush whom Prince supported in his bid to become President has described these attacks as a “crusade” (Scahill, 2007a, p. 33; Ford, 2001, p.1). Thus it can be argued that the work that Prince’s company performs in the War on Terror may be motivated by ideological beliefs as well as profit.

On the 26^th December 1996 Prince and Clark incorporated the Blackwater business and shortly afterwards began building their training facilities in North Carolina. Their aim was to build a facility that could act as “one-stop shopping” for the various military and law enforcement units around the country (Scahill, 2007a, p. 26). In the early days, Prince and Clark were able to attract SEALs to their facilities because of their past associations with them. However, it did not take long for word to filter through to other agencies such as the FBI that a facility had been built to cater to their military and special law enforcement needs rather than a sport shooter’s needs. They even built a mock school in their facilities, “Are You Ready High” which after the Columbine High School massacre led to new contracts for Blackwater training because law enforcement agencies were eager to develop skills to cope with these types of incidents. The other significant development for Blackwater prior to September 11 was gaining a government General Services Administration (GSA) contract which meant that government agencies could procure services without having to put out a competitive bid contract each time. This meant that attracting new government agencies to their facilities was significantly easier. Thus, during the period between Blackwater’s incorporation in 1996 and September 11, 2001 growth in the business was robust but it was soon to grow at a spectacular pace with the events of September 11 and two years later the invasion of Iraq (Scahill, 2007a, p. 47). After September 11 virtually all U.S. government departments began looking at their capability in response to an act of terrorism and found they had barely been considered prior to September 11 (Scahill, 2007a, p. 42). The other really significant event for Blackwater following September 11 was the creation of Blackwater Security Consulting (BSC) in 2002. Originally the vision of CIA veteran Jamie Smith, BSC started turning a profit soon after its conception thanks to an “urgent and compelling” CIA contract for work in Afghanistan (Pelton, 2007, p. 37). The fact the contract was deemed urgent and compelling meant that it could be awarded without a competitive bid process and was thus even more lucrative than it might otherwise have been. This new consulting division of Blackwater was the birth of the company that has risen to worldwide infamy today.

Blackwater first came to international attention in Iraq because insurgents in Fallujah killed four of its contractors. Fallujah had been a city of conflict since the British occupied it in the 1920s and had seen numerous uprisings since that time. More recently, the first Gulf War in 1991 had added to the anti-western feeling due to civilian casualties from the allied air campaign. This was compounded before the Blackwater incident because soldiers from the 82^nd Airborne Division had occupied the city and setup a headquarters in one of the local schools. Soon after accusations started surfacing of troops acting in inappropriate ways which included things such as urinating in the streets and using night-vision equipment to spy on local women (Human Rights Watch, 2003, p.1). Finally, during an Iraqi protest, a fight started between the protestors and the soldiers. The protestors claimed they were unarmed while the soldiers claimed they were shot at. The end result was that thirteen Fallujahan civilians were killed with another seventy five wounded (Human Rights Watch, 2003, p.1). This all served to create a city that was virtually a no-go zone for coalition soldiers prior to the Blackwater contractors entering the city.

On the 31^st March 2004 four Blackwater contractors were tasked with providing security for a delivery of kitchen equipment for the catering company Eurest Support Services, part of the Compass Group, which is the world’s largest food services company. The Fallujah incident and its associated contract is a good example of the dangers that can come through outsourcing work because it shows the way people can manipulate a situation for financial gain at the expense of other people’s lives. It also highlights the risks individual contractors face when they trade their uniform for a larger pay check. The mission suffered from numerous errors and also failed to meet the terms of the contract.

The contract called for a minimum of three people per car, using armoured cars and with a heavily armed rear gunner. It also required a pre-trip planning session to ensure that all relevant intelligence and information was passed onto each team member and that they all understood important information such as the route, backup routes as well as any likely areas of ambush (Frontline, 2005, p.1). The problem with this particular mission was that it was put together in a hurried fashion with little regard for prior standard operating procedures, which gave it very little chance of succeeding. The cars the men were using were not armoured, they only had a four man team, despite having two vehicles. This meant there was no one to guard the rear of the vehicles. They also lacked any serious firepower and the men did not all know each other or have a long enough period to get to know the other members of their team before deployment (Crain, 2004, p. 1). Furthermore, the team was not able to carry out its pre-operation intelligence assessment or even obtain proper maps of the area (Scahill, 2007a, p. 99). This was a key reason for the failure of this mission. The killing and horrific mutilation of the contractors resulted in totally changing the military’s plans.

It is believed that Blackwater’s operations had been compromised from within the green-zone and that the information about the contractors had been supplied to the insurgents who were then able to set up an ambush in the most effective position (Ricks, 2006, p.31). After the contractors were killed they were burnt in their cars and then hung from a bridge that crossed the Euphrates. Images of this were captured by journalists and made news around the world. The resulting fallout from the killing of the contractors would change the military’s plans for Fallujah from a winning ‘hearts and minds’ strategy to razing the city (Woodward, 2006, p. 296). The marines, who were stationed on the outskirts of the city, began reviving plans to pacify the city and started issuing warnings to the civilians to leave and that anyone found in Fallujah would be considered an insurgent (Ricks, 2006, p. 313). This incident provides a clear example of the dangers that are involved with having forces outside the chain of command, acting unilaterally for their private gain, yet having a negative impact in the public sphere and ultimately leading to a complete change in U.S. policy. This incident demonstrates some of the main concerns with outsourcing in Iraq, in particular, lack of oversight and lack of regulation of forces outside the military.

One of the main arguments that PMFs use to convince people that they are not mercenaries is the fact that they are operating in a defensive, guarding capacity. Commentators such as Percy claim that the fact they do not conduct offensive operations is a key difference between them and their mercenary predecessors (Percy, 2007, p. 225). It is for this reason that the incident involving Blackwater on the 4^th April 2004 in Najaf, just days after the killings of the contractors in Fallujah, was so significant. Prior to this eventful day the U.S. administration had been cracking down on the powerful Shiite cleric Muqtada al Sadr and his Mahdi Army whom they perceived as a potential challenger to their power in Iraq. This is because al Sadr had been doing what the Americans had been unable to do: he had been providing essential services to the poor Shiites, and in the process growing his army and popularity (Tristam, 2008, p.1). Sadr was also building his image and credibility with the local Shiites through his unwavering criticism of the invasion and the continued presence of the coalition forces. Thus al Sadr had grown into America’s main enemy in southern Iraq. The catalyst for the uprising of the Mahdi Army came on the 28^th March when U.S. troops raided Sadr’s newspaper Al Hawza (BBC News, 2004, p.1). It was accused of violating Bremer’s Order 14, which prohibits broadcasts that incite violence or civil disorder (CASI, 2008, p.1). The closure of Al Hawza sparked immediate protests and gave Sadr’s supporters a rallying cause that led to his popularity increasing even further (Scahill, 2007a, p. 121). Bremer then made another mistake in arresting Sadr’s second in command, Sheikh Mustafa Yaqubi on the 3rd of April. Al-Sadr needed no further encouragement to put a call out to his followers to rise up against the “invaders” (Barnard, 2004, p. 1). Thousands left Baghdad and other areas and made their way towards Kufa which was the headquarters of Sadr and next to Najaf. By the 4^th of April the Mahdi Army was establishing itself in official buildings and taking over from local police forces. Once these areas were in Sadr’s hands the army headed towards Najaf which was home to a regional Coalition Provisional Authority (CPA) headquarters. Blackwater had a contract to provide security for the headquarters and had an eight-man team stationed there.  Other forces at the headquarters included a small number of soldiers from El Salvador and U.S. Marine Corporal Lonnie Young. The involvement of a U.S. soldier was also interesting because Corporal Young was on the rooftop with the Blackwater guards and asked their permission to engage targets which then placed him under their command. From a pragmatic point of view this makes sense, because there was a good chance that the Blackwater guards might have been ex-special forces. From an international relations perspective it raises serious questions about the actual function that companies such as Blackwater are playing in Iraq and casts strong doubt on their assertions that they have in fact changed from their mercenary predecessors. Furthermore, this highlights the need for contractors to be either limited to completely non-military tasks such as food service or properly integrated into the fighting force. This would require them to follow the rules of engagement as well as the guidelines or laws governing their interaction with other military elements.

Before long Blackwater and the other soldiers were engaged in a lengthy battle with the Mahdi Army. Despite repeated calls to the U.S. military they were only given minimal support for most of the battle and had to rely on Blackwater helicopters for additional ammunition and casualty evacuation (Priest, 2004, p.1). After several hours the battle finally ended with U.S. Special Forces moving into Najaf. Despite the negative image of mercenaries being only interested in money and being liable to leave a situation if it gets too messy, the Najaf battle demonstrated that companies such as Blackwater could be relied on and were not going to quit if the going got tough. A common reason given for this is the fact that most of the men present there are ex-military and still abide by the same ethos and would thus do their job as required (Pelton, 2006, p. 154). This point is missing from most accounts in the general media which tend to focus on the negative impacts that the PMFs have in Iraq rather than showing there can also be positives in using PMFs. The fighting in Najaf was represented negatively by the New York Times who saw Najaf as evidence that the Pentagon had outsourced its core responsibility rather than asking for more soldiers (Barstow, 2004, p. 1). While this may be true, it does not give any credit to Blackwater for its role in protecting the base that day under extremely hostile conditions with little support from the U.S. military.

The latest serious event involving Blackwater occurred on September 16 2007 in Nisour Square in Baghdad. Blackwater was escorting a group of U.S. State Department employees through Baghdad when a sedan approached them travelling on the wrong side of the road. There are conflicting stories about exactly what happened and whether or not warning shots were fired at the vehicle, however, Iraqi Brigadier-General Abdul-Karim Khalaf has claimed that Blackwater was firing randomly at civilians (RTE News, 2007, p. 1). By the time the convoy left the area seventeen Iraqi civilians were dead and Blackwater was once again in the headlines for ‘cowboy’ like behaviour (Zagorin, 2007, p.1). Following the incident the Iraqi government issued a press release stating that as a result of the shootings, Blackwater’s licence to operate in Iraq was being cancelled. The main problem with this was that Blackwater had never obtained a licence to operate in the first place. Furthermore, Blackwater had become so essential to various U.S. departments for their own movements in Iraq that the U.S. government could not allow the company to be removed from Iraq (Pitzke, 2007, p.1). Numerous investigations into the incident have been launched by various government agencies such as the U.S. State Department, the F.B.I. and the U.S. Congress as well as an investigation by the Iraqi’s themselves. Despite the seriousness of the incident, there has been little if any actual prosecutions or punishments of those involved and Blackwater was back conducting its normal operations six days after this incident (Tawfeeq, 2007, p.1).

This latest Blackwater incident brought the issue of PMFs and their lack of accountability to public attention even more than the previous incidents. While the two previous incidents could possibly have attracted sympathy for the PMF cause, the Nisour Square incident has served to paint them as the latest incarnation of mercenaries (Scahill, 2007b, p. 1). An image that the company has spent considerable time and effort to avoid. It has also caused the public, the media and the U.S. congress to focus on the lack of accountability of the industry. This has led to further investigations of their conduct in areas such as corruption and waste as well as prompting renewed calls for investigation into their continued use and whether or not their services are worth, not only the high financial costs but also the unintended negative consequences. Loss of trust has probably been the greatest cost to Blackwater of the whole incident. Blackwater is now required to have video cameras mounted in their vehicles and federal agents travelling in their convoys contracted to State Department protection (DeYoung, 2007, p. A01). There is now a renewed focus on contracting in general and the billions of dollars that have gone missing or been misappropriated through inflated cost-plus contracts. Furthermore, shortly after the incident the U.S. Congress passed a law that would make private contractors subject to the MEJA so they can be prosecuted by U.S. courts.

It should also be noted that the examples discussed above provide only a small sample of the incidents that Blackwater has been involved in that have raised questions about the role of PMFs in Iraq. There are quite a few other ‘activities’ of Blackwater and their contractors that have also made headlines such as: the shooting of a guard to Iraqi Vice President Adil Abd-al-Mahdi on Christmas Eve 2006 by a drunken Blackwater contractor who was then flown back to the United States and still has not faced any charges (Associated Press, 2008, p. 1). Back in the United States Blackwater has also made headlines for its role in the Hurricane Katrina Disaster and the exceptionally large amounts of money it charged the government for its services there, as well as, more recently, its purchasing of automatic weapons for a Sherriff’s Department that were later seized by Alcohol Tobacco and Firearms (ATF) agents because it is illegal for individuals or corporations to own fully automatic weapons (Baram, 2008, p. 1). Stories such as these only further entrench the image that the public has of PMFs, which is that they believe themselves to be above the law and can act anyway they please (Eviatar, 2007, p. 1). It also raises questions about a PMFs right to use force rather than force being the sole responsibility of the state, as has been discussed previously.

The Blackwater case study provides a good example of the issues discussed in this dissertation because virtually all of them relate directly to Blackwater. Issues such as regulation and oversight have been a key reason for failures in the PMF industry and are demonstrated by the example of Blackwater in Nisour Square, which has resulted in more stringent monitoring of their activities. Similarly, issues of legality have also become more prominent due to the actions of Blackwater. Finally, this has led to a questioning of the real costs of using PMFs and whether the short term gains translate into the long term broader objectives of the war which has seen commentators such as Singer questioning their legitimacy for being involved in any weapons carrying roles at all (Singer, 2007c, p. 1).