Why not, when nations have already lost the monopoly of violence, consider creating volunteer mercenary forces organized by private corporations to fight wars on a contract-fee basis for the United Nations…Governments unwilling to send their own young men and
216 Fabre, “In Defence of Mercenarism,” 543–545.
217 Shannon E. French, “Warrior Transitions: From Combat to Social Contract,” United States Naval Academy, January 2005 JSCOPE, 10.
218 Lehnardt, “Private Military Companies and State Responsibility, 139.
219 Baker, Just Warriors, Inc., 181.
women to die in combat…might have fewer reservations about allowing the UN to contract with a non-political, professional fighting force made up of volunteers from many nations—a rapid-deployment unit for hire.220
As the preceding quote suggests, the idea that PMCs could be employed to conduct humanitarian intervention has been proposed by a number of theorists.221 There are PMCs that have proposed the idea themselves,222 which demonstrates willingness and the presumed capability to carry out the mission on the part of the PMC. Pattison argues that the employment of a PMC to conduct a humanitarian intervention can be morally permissible.223 Furthermore, as argued in Chapter III, the employment of a PMC in this case may be morally preferable, on the grounds that humanitarian interventions are not typically part of the agreement between the state and the individual who volunteers to join that state’s armed forces.224 Given what has been presented, a simple framework to guide ethical private intervention is required, so in Chapter V, a theory of ethically justified private intervention based on Just War Theory will be presented.
220 Alvin and Heidi Toffler, quoted in Simon Sheppard, “Foot Soldiers of the New World Order: The Rise of the Corporate Military,” New Left Review (March 1998): 138.
221 Singer, “Peacekeepers, Inc.,” 59–70; Shearer, Private Armies and Military Intervention, 77; Don Mayer, “Peaceful Warriors: Private Military Security Companies and the Quest for Stable Societies,”
Journal of Business Ethics (2010) 89: 387–401; Baker, Just Warriors, Inc., 161–178; James Pattison,
“Outsourcing the Responsibility to Protect: Humanitarian Intervention and Private Military and Security Companies,” International Theory 2:1 (2010): 1–31; Patterson, Privatising Peace.
222 Singer, Corporate Warriors, 185–186; Barlow, Executive Outcomes, 441.
223 Pattison, “Outsourcing the Responsibility to Protect,” 10.
224 Baker and Pattison, “The Principled Case for Employing Private Military and Security Companies,” 6–11.
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V. THEORETICAL FRAMEWORK
We shall know nothing until we know whether we have the right to kill our fellow men, or the right to let them be killed. In that every action today leads to murder, direct or indirect, we cannot act until we know whether or why we have the right to kill.225
Once the decision is made to intervene, and a responsible principal finds it necessary to hire a PMC, then an ethical guideline under which to carry out the intervention becomes necessary. Existing guidelines, such as the Montreaux Document and the ISOA Code of Conduct,226 are useful for lists of “good practices” directed at industry professionals; but these good practices should be observed alongside a theory of ethically justified private intervention, which aims to provide a more flexible guideline for ethical conduct in a broad range of circumstances. Before the theory can be formulated, however, the validity of a few arguments must be accepted. First, one must accept the arguments that humanitarian intervention is morally obligatory under certain circumstances, there exists conditions under which it can be permissible to outsource intervention, and that soldiers employed by a PMC are not different than any other soldier in any morally relevant way. Next, if it is not controversial to say that a war is just when it is prosecuted under the principles of Just War Theory, then it follows that an armed humanitarian intervention conducted by a PMC would also be just, if it is carried out under an appropriately modified version of the same theory. The former three arguments have been presented in the previous chapters of this thesis; the latter argument will be presented for the remainder.
The unique problems that PMCs pose to ethical intervention must be addressed by any such theory. Beginning with traditional Just War Theory as a baseline, appropriate criteria will be identified and defined as they apply. To accomplish this, a brief overview
225 Albert Camus, The Rebel (New York: Vintage International, 1991), 4.
226 For a comprehensive analysis of the Montreaux Document, see James Cockayne, “Regulating Private Military and Security Companies: The Content, Negotiation, Weaknesses and Promise of the Montreaux Document,” Journal of Conflict and Security Law 13, no. 3 (2009):401–428; and Mayer,
“Private Military Companies and the Quest for Stable Societies,” 394–397.
of Just War Theory as it exists in the current literature will be presented, and traditional criteria will be described as they relate to PMCs and intervention. Considering the hypothetically consequentialist nature of the mutual contractual obligations between the principal and agent, the criteria from Just War Theory given the most weight are non-consequentialist in nature. Of particular interest and relevance are the jus ad bellum principles of right authority, just cause, and right intention; and the jus in bello criteria of proportionality and discrimination. Within these criteria lies a major challenge for PMCs:
legitimacy. Traditional legitimacy, or right authority, came from a state official or equivalent; the principal agent of a PMC may not have that status. Therefore, it is necessary to recall Pattison’s Moderate Instrumentalist Approach from Chapter II, where it is proposed that legitimacy is derived from effectiveness, and that only a legitimate intervention force can achieve a desirable outcome. If accepted, this approach could exclude some state forces and international organizations, such as the UN. While Pattison’s framework is designed to determine who is most suitable to conduct an intervention, its criteria will be used here as consequentialist determinants of ethical performance in an intervention. Of special interest within this framework as it relates to PMCs is internal jus in bello. Pattison identifies this criterion as especially problematic for PMCs,227 but the opposite will be argued here. Either way, the criterion is important to include in this theory of ethically justified private intervention exactly because of the potential problems it poses. Finally, so as to present a complete theory that does not exclude conflict termination, a final jus post bellum criteria will be presented that takes into account the special nature of PMCs in conflict as peacemakers, not necessarily peacebuilders. Since there is no satisfactory jus post bellum criterion available, a new one will be presented–just transfer of authority.
227 Pattison, Humanitarian Intervention and the Responsibility to Protect, 209.
A. SOME CRITERIA FOR ETHICALLY JUSTIFIED PRIVATE