Abstract

In this episode, we speak to Professor Simon Chesterman about the possibilities and limitations of regulating private military and security companies through international law. We will also explore whether there are better alternative solutions that are local and market-based.

This podcast series is presented by Dr Alessandro Arduino, principal research fellow, and Dr Ameem Lutfi, research fellow, at Middle East Institute, National University of Singapore.

Listen to the full podcast here:

Edited Transcript of Boots Off the Ground Episode 8: Regulation and Accountability of Private Military in the Eyes of International Law

Dr Alessandro Arduino (AA): Welcome to the eighth episode of the National University of Singapore’s Middle East Institute’s podcast series “Boots Off the Ground: Security in Transition from the Middle East and Beyond”. In the series, we look at the future of warfare, we will see uniformed soldiers, or boots on the ground, being replaced by private military companies (PMCSs), autonomous weapons systems and cyber weapons.

This week, we continue our discussion on one of the key running themes in our series: the possibilities and limitations in regulating private military and security companies. My name is Alessandro Arduino, and I will be the co-host for this series along with my colleague, Ameem Lutfi.

We are very glad to have with us today Professor Simon Chesterman. Professor Chesterman is currently the dean of the National University of Singapore’s Faculty of Law. He has taught at a range of institutions, including University of Melbourne, University of Oxford, University of Columbia and New York University. He’s a leading scholar in the field of international law and is the author of 17 books. For the purpose of today’s discussion, I will mention two edited volumes considered foundational in the study of military organisations, namely From Mercenaries to Market: The Rise and Regulation of Private Military Companies and Private Security, Public Order: The Outsourcing of Public Services and Its Limits. Thank you very much, Simon, for being with us today.

Professor Simon Chesterman (SC): It’s a pleasure to be here. Thank you.

Dr Ameem Lutfi (AL): Yeah, it’s great having you here with us, Professor Chesterman. Just to kick off the discussion today, I want to plug you into this debate that we’ve been having across this podcast series on this issue of defining private military and security actors.

Essentially, we’ve had two camps: one that has called for a catch-all term, let’s say “mercenary”, and there’s the other camp that says, no, you actually have to have precise legal definitions and precise categories for the different types of players, the different activities and the different scenarios in which they operate. So I want to get your opinion on where do you stand on this, and is there a working definition that you’re most comfortable with?

SC: Thanks. I mean, in law, definitions are, of course, important. But even more important is interrogating why one wants to define a term and what one is trying to achieve. If I can pick an alternative controversial term, the definition of “terrorist” also provides enormous grist for the mill because there are competing reasons why one is trying to define that term. In terms of a private military security company, you see a similar dynamic that the term “mercenary” was originally intended in the 1980s, at least, to try and define someone who was an illegitimate actor. And the mistake that was made, and this was in the 1989 convention on mercenarism, was that it is defined by reference to motive — so a mercenary is defined as someone who’s fighting outside traditional military forces and is motivated essentially by private interest. Now, this is terrible definition, partly because for the most part, the law really doesn’t try to get inside the heads of individuals to understand their motives.

Most laws we pay attention to look at whether something is intentional or not, whether someone intended to murder, whether someone intended to steal — we don’t really care why. The context of why might come up in how you punish them. In the case of mercenaries, however, this was really an attempt to de-legitimise a category of actor. And it’s striking that mercenaries became so illegitimate in the 20th century, given that a mere 200 years earlier — not a terribly long period of time in international legal terms — mercenarism was really the norm. I mean terms like “freelance” today continue to be relevant because that used to be a reference to someone who was free and had a lance. The Pope continues to be guarded by what is essentially a mercenary force.

And so that attempt to define mercenaries was doubly flawed, I think — one, because it was attempting to de-legitimise a category of actor on the basis of their motivation, and underlying that, the reason was concern about the role these people had been playing in wars either to overthrow governments in Africa or to oppose self-determination movements in Africa. And so I don’t agree with that kind of definition. It’s unhelpful. It’s also unworkable. Geoffrey Best, I think, was the military historian who said anyone who was convicted of being a mercenary under that very limited definition should be shot, and then their lawyer should be shot as well because it’s such a ridiculous definition, it should be easy for a lawyer to disprove.

So to answer your question, I do think there is a reason to be concerned, but I would be more targeted, rather than de-legitimising a category of actor. To me, the private military and security company rhetoric and the valuable aspect of the language of mercenarism is that it highlights the danger of an accountability deficit, and that accountability deficit comes in the first word, which is “private”. And so, to me, the important aspect of the definition is someone who is engaging in military- and security-type activities — in particular I would say, situations involving the potentially lethal use of force — but in a private capacity outside of an accountability structure, traditionally in our terms, in the context of a standing military subject or a military justice under a well-ordered state.

So that would be the definition that I would lean towards. But then, yes, you do have to drill down, okay, what are these military and security functions. It’s probably more than just the contractor who does the laundry, but that’s one extreme. The other extreme is someone who’s engaged in kinetic warfare; certainly that’s included. And in between, you do have lots of marginal cases like the transportation companies or the site security companies, and you would have to look at them quite closely. But yeah, I would come down on focusing on the word “private”, and the reason we’re concerned about this, which is not because someone is being immoral, but because they’re operating with lethal force in a situation where they might not be held accountable for that force.

AA: Thank you very much, Simon, I quite appreciate the dynamic definition that you use in framing things, from terrorism to mercenaries. But I’m not going to ask more about the Pope and his Swiss guard. I want to take you on another part of our ongoing discussion on private military and security, and it’s about the preferred target for regulation. In your opinion, which strategy leaves the smallest loopholes in regulating private military, especially from the point of view of an exporting state, but also from the importers?

SC: This is a problem in lots of global activity or transboundary activity: do you try and do things at the international level, where at the international level, you tend not to have real meaningful enforcement? It’s at the state level you have the possibility of enforcement. So should we look at, if you like, supply or demand? The advantage of the demand side is that’s where the activities take place, that’s where crimes, for example, might take place. The problem with that is private military and security companies tend to be most actively involved in states where traditional accountability institutions — law and order — have broken down, and so, in particular, if you look at some of the places where military security companies have been most active — Iraq, Sierra Leone, Afghanistan for example — they don’t have functioning law and order regimes that are necessarily going to be helpful.

And so I do think you need to focus on the supply side and, indeed, we’ve seen some moves in the US context at least, for contractors who are employed by the US military to be held accountable under an extension of the US military code of justice. And so if you are looking for effective accountability, you probably do need at least to look to suppliers, rather than just relying on the demand side.

AL: To continue the discussion, I mean, the question then becomes: if you’re talking about supply side regulations, then what is the extent to which one should perhaps advocate or structure this regulation? Because again, you run into this problem: if you’re too strict with your regulations, then they just go to another country, or if you’re too lax, then they become meaningless. So how do you find a balance between this? And to add on to this question, I mean, there’s one thing that you’ve discussed in your edited volumes, this idea of the market regulating itself, that sort of thing, or the buyer-centric kind of regulations.

SC: Yeah, I mean, it’s a similar argument to tax regimes; if you tax people too much, they’ll flee, or at least the rich people with ability will flee. And I think there’s an element of that, but that doesn’t mean we should engage in a race to the bottom. I mean, in particular, well-ordered countries with big economies like the United States, the United Kingdom; these are going to be desirable places for businesses to locate themselves. Countries like the United States with big operations, big presences around the world will have an interest in this type of company.

But you’re right that if there is a lot of disaggregated activity around the world, there’s a danger that these organisations will either move or fragment, set up subsidiaries or alternative operations. And that’s where the market does become quite important, because if you have the emergence of a market, you de-legitimise the race to the bottom.

And indeed this is where it’s been quite striking, that some of the private military security companies themselves have been trying to organise; we have, kind of, industry associations and efforts to raise the standards, if only to be able to charge higher fees. And actually, I see that as a valuable step. The maturing of the market does mean that it’s possible for those actors to have a degree of self-regulation. Now the problem with self-regulation, of course, is that there are a lot of vested interests, and self-regulation is not very good at establishing bright moral lines for things that you should not do. And so, that’s where I would come back to the idea of national and possibly international regulation, saying that, for example, in the extreme case, you can’t engage in lethal use of force without a meaningful accountability structure, which probably means coming under the uniformed military of a state; that you should treat mercenaries — in that true sense of people who are operating completely outside of state jurisdiction — a bit like pirates who become the enemies of all, because they stand, not only for themselves and against the law, but against all organised political structures as such.

So yeah, I think there is a danger in regulating too hard, because we push people offshore. But if you go too lax, then you won’t have any meaningful accountability at all. And it’s in recognition of that dynamic that some of the private military security companies themselves have seen that they want to avoid harsh regulation; they also want to avoid no regulation, because they want to make money, but they also they also want to make it in a sustainable way — there’ll be more than just a few years of rent seeking; they want to establish themselves as legitimate actors.

AA: As when we were talking in our previous podcast with ICoCA (International Code of Conduct Association) or ISOA (International Stability Operation Association) for example, as you mentioned, the race to the bottom is a common problem from Iraq to China. But if we want to look more at an international regulations role; Simon, you mentioned in your publication that Kofi Annan, himself, was an advocate of privatisation of global peacekeeping. In other times perhaps, it was too early, but now private military security is fast becoming the norm. Do you see an expanded role for international peacekeeping (from the private side of course)?

SC: Yeah, well, so Kofi Annan — who was secretary-general of the UN — I think that was expressed in the context of some exasperation, for want of alternatives. He was open to it, and this was in situations that the UN faced like in the Rwandan genocide or the genocide in Darfur, where there was a clear crime against humanity taking place and no willingness on the part of states to intervene. There was a serious conversation within the context of the UN, whether a private military security company could offer some assistance. And it’s interesting that there were two reasons that didn’t happen: one was a real wariness about the politics of it, whether states would be willing to countenance the privatisation of peacekeeping, as it was said to be. But then the second problem was also just the expense; it would have been a lot more expensive than a traditional peacekeeping operation, and so in the end, the UN just never really had the budget, and it was prohibitively expensive in its own right.

But moving forward, both concerns remain; the politics of privatisation and the cost. But on the politics, there has been a kind of privatisation, not by stealth but by default, in the UN. So we do see now, a lot more private contractors involved in the less controversial aspects of peacekeeping; in the logistics, the backend of operations. I think it’s just necessary to rely on who’s available, and there’s no principal reason, I think, that you should have a state-based organisation providing the meals and basic transportation, as opposed to a contractor. So I think that will continue, but I do think it would be a long time before the UN is really ready to have the private actors at the tip of the spear, if you like, in terms of an operation, precisely because of the experience through the 20th century of mercenarism, but also because in the context of the UN, this is much like the way in which the member states of the UN don’t want the United Nations to have its own force. They don’t want force to be used independently of member state regulation, which is why, for the most part, when military activity does take place under UN auspices, it’s both under national control, but also under pretty strictly defined mandates, either by the UN Security Council or, in very rare circumstances, under the authorisation of the General Assembly.


AL: If I could just get your take on an issue that you’ve written a lot about on the privatisation of the intelligence agencies and security analyses. So are these kinds of companies, private military companies, that do, let’s say intelligence operations or security analysis; do they raise specific kinds of challenges that are peculiar to them, apart from active combat?

SC: Yeah, there’s similar concerns but in some ways more extreme, because if the concerns of private military security companies that associate with the PMSCs is that force will be used in a manner that could harm individuals outside of a regime of accountability, that is even more extreme in the context of intelligence services, both in terms of covert action — if we’re thinking about kind of James Bond-style assassinations and so on — but also just in terms of regular espionage, the infringement of civil liberties, and here, the extreme case is that citizens will not know and that there will not be any accountability; and indeed, it’s striking that in some situations, states have relied on private companies to do these things, precisely to keep it outside of accountability structures. Again, we see that both in the context of PMSCs, so during the Iraq war, after the United States, the largest contingent of individuals in the Iraq theatre were contractors, and that was not because they were cheaper; it was because that way, they did not appear on the list of nationals who were in the theatre, nor did the casualties appear as a list of deceased individuals from the different member states.

In the context of intelligence services, it’s particularly difficult in terms of accountability, because at the best of times, spies quite understandably try to remain below the radar. It’s very hard to hold spies accountable, and if you’ve got that extra layer of insulation from government accountability — and we saw that also in the context of the United States after September 11 — then then the accountability question is amplified.

Now, in this context, it is possible to imagine a market kind of developing — and markets can work when there’s a competitive environment with free exchange of information and an expectation of repeat encounters — and that’s when self-regulation can be most effective. The problem is that for both the PMSCs and for intelligence services, none of those three things really exist. There tend not to be a lot of actors that you can choose between — because again, just to stick with United States, you need individuals with security clearances, and those tend to be relatively limited; free exchange of information — well, that’s kind of the antithesis of intelligence gathering; an expectation of repeat encounters — that also doesn’t tend to be a feature of the situations in which you are outsourcing these military or intelligence activities; it tends to be to deal with a crisis, rather than a situation where you think, well, this is going to be the normal. And indeed that’s one of the reasons why bureaucrats will turn to outsourcing, because you can have search capacity, and that’s maybe good economically in the medium term, because you don’t have to build whole departments or build new divisions of your military, but it is at the expense of short-term accountability.

AA: I do believe that definitely there are growing concerns about private military companies in terms of how to outsource or how to regulate it properly; but it’s quite interesting that up to now, there is not much public talk about the private intelligence service, and that’s quite concerning. I will comment that, of course, while you’re right that, as the first step to regulating private security, the state needs to decide on functions; what are the functions that are inherently governmental, and in your opinion what might some of these government functions include; let’s say, can there be a universal answer to this question, or each state has to find and adopt solutions and a side for themselves?



SC: Yeah, and I think this goes to the nature of the very idea of the state, and we see this emerging in different directions in different states. So, the United States, for example, tends to have a long tradition of suspicion of government and valorisation of the private sector. And so in the US context of the language of inherently governmental services, you have a presumption that things should be private sector, unless there’s a justification for government engaging in a particular type of activity; whereas in many other jurisdictions, Europe most prominently, there were much larger roles for the state; China again as a presumption that the state will have an interest in all sectors of the economy.

So I don’t think you’ll get a universal definition of this, but there’s some common ground certainly. And usually where this ends up is, I suppose, two things: one, the state should not be able to do things by outsourcing that which it could not do itself, so if you’re not allowed to do X, you shouldn’t be allowed to pay someone else to do X as a state; that seems fairly obvious. And then the second thing is, in terms of what you shouldn’t be able to do; for most people I think, they would agree that public sector activities that affect the rights and obligations of individuals — the exercise of discretion — should be made by individuals who are accountable within that public structure; in most states, but not all, accountable through some kind of democratic process, or at least through some kind of public sector accountability regime.

So what are the things that affect fundamental rights? Well, right to life is an extreme case; you should not be able to terminate someone’s life without that decision being made within a proper set of structures, and that includes both the military and it also includes the judiciary; you should not be able to outsource that sort of question. The determination of who is an enemy — this is also a key question that goes back to [Carl] Schmitt and so on. The idea of what it is to be a state — the fundamental question Schmitt argued is that it is the determination of who’s a friend and who’s an enemy; and so that should also be held within the state. So these things, I think, are pretty clearly inherently governmental, although, as you say, there will be some variation. But as I’ve written elsewhere, at least the determination of what is inherently governmental and what is not — that should be an inherently governmental question with some kind of accountability on its own.

AL: To continue this discussion in which you’ve mentioned about certain functions that perhaps need to be considered inherently governmental — but if we think about this question across time, there’s certain functions or certain acts that might blur the line between state and private agency and I’m here thinking in the Gulf, right, where you have companies like the Emirates airline, which in good times serve as essentially a private company, but when times get tough, the state starts to, you know, put its dictate on what it should do, it gives it, you know, subsidies and so on. So the line between them becomes very blurry; if they’re private or are they public.

And I’m wondering if you see a similar trend perhaps developing even with the private military sector. You mentioned it earlier about this idea of search capacity, right, so like in that states can use these private companies to offload the excess instead of building their own structure. So, especially with, like, these small states that don’t have their own standing armies, you know; I’m thinking about if some states like Dubai could have, you know, an army that, when times are good, goes around and serves the private military companies, but when it needs it to serve internally, then it becomes essentially a national army. Do you see something like this, or is there a possibility of this?

SC: Yeah, so it already exists; we’ve mentioned the Pope and the Swiss guard, and you can also point to the Gurkhas as a kind of outsourced military; and I do think it’s likely to increase in particular as security becomes more technologically focused, because the move to reliance on technology, on drones, unmanned aerial vehicles, eventually some kind of autonomous weapons systems; that technological leap is going to be both hard for lots of small states in particular to replicate, and very tempting for small wealthy states to import. So I do think it’s inevitable that small states will look to these types of organised companies that can provide these services for their security.

Now, is that a good thing or a bad thing? It will depend on how they’re used, what kind of checks and balances are in place. But I do think that we’re likely to see greater reliance on technological fixes in the medium term, and in the short term, absolutely, on the outsourcing of public services — again, you mentioned the Gulf — huge proportions of public services are already outsourced in the Gulf. We’ve seen the whole scale importation of educational institutions; I used to work for New York University (NYU) and went over to NYU Abu Dhabi, and met the various officials who were overseeing the education sector, virtually none of whom were Emirati.

And so I think you do have this experience of importing because you’ve got the combination of large resources and not a lot of human capital, and so the temptation — not a temptation, but the rational decision to import — makes a lot of sense. And so again in the short term, I think you’ll continue to see that in terms of private military security companies, and then medium term, maybe more reliance on technology.

AA: Yeah, what you’ve just mentioned, drones and cyber-weapons are already part of our podcast, but we are going to look deeper in, not only at cyberweapons, but also at autonomous weapon systems; that is definitely a trend that needs to be taken into consideration.

But now moving from the Gulf to the part of the world that we are located in now currently; in your opinion, what are some of the approaches that this country in Southeast Asia is taking to regulate private military; and if I may ask — particularly given the track record for regional cooperation — is there a possibility of, let’s say, an Asian mechanism for controlling private military security companies, and that that kind of future mechanism might even serve as a model for our region?

SC: No, I think it’s unlikely, and the reason is that both Asean (the Association of Southeast Asian Nations) and Asia have pedalled very slowly on regional agreements. There are no functioning regional organisations comparable to what we see in Europe with the European Union, Africa with the African Union, the Americas with the Organisation of American States. Asean, in the context of Asia, is probably is the strongest of these organisations, but it’s intentionally weak in terms of any kind of coercive power. Asean is very effective as a trade community, as an effort to lower tariffs. And there are three communities, the economic community — that’s the strongest; but the politico-security and the socio-cultural communities lag far behind. So I don’t think you’ll see a big robust regime to control private military security companies, both for that structural reason, but also because domestically, many of these countries do use private military security companies, at least on the security side.

Where I do think there might be some scope for movement is regulation of anti-piracy activities because there has been a lot of cooperation — not necessarily across Asean as a whole, but for example, Singapore, Indonesia, Malaysia — in anti-piracy measures, and as shipping companies rely more on defensive PMSCs, there might be scope for some regulation there; so that I would see as a real possibility.

AL: Thank you. Now to end the interview, I want to ask you a question that we plan on asking all our guests, and that is: what will the future of military and security privatisation look like in the coming 30 years?

SC: Thirty years … Okay so I think there will still be a role for state-based armies, but as technology advances, I think people will eventually move past the idea that armies of men and women are going to be replaced by Terminator-style robots walking in formation; I don’t think that’s going to happen. There was a report recently from the UK that they think one-quarter of their soldiers might be robots in the future; I think that’s a very limited way of understanding the impact of technology. What I do think will happen is a lot more of our defence will be high tech; you’ll have drones, both in the air, in the water, on land. The question whether they will be armed or not is an open one, but there’ll be greater reliance on this technology. And as that technology becomes more advanced, it becomes harder for public sector entities to develop and control it.

So at the moment, the US and China have very strong research bases in this area; Singapore has been exploring it; but I don’t expect countries around the world to be at the forefront. Rather, they will be trying to buy off-the-shelf materials. And so I think you will certainly see technology playing a greater role, and as the industry matures, it’s possible that you will see, sort of dominant actors emerge, as much as, sort of, social media buying and selling online. We’ve got the Facebooks and Twitters of this world, we’ve got the Amazons and the Alibabas of this world; I think you might see a more legitimate private security regime emerge in terms of the global actor, and then it’ll be the real question to what extent publics around the world and in our region are willing to outsource their security to these companies, given what that means is you are delegating significant public power and indeed risking the possibility that that the control over that power could be at some point taken away from you if it didn’t suit the actor that you’ve retained to protect you from other threats. So short answer is technology will increase; companies will become more important; and my hope is that publics will be aware of this, listening to podcasts like yours, thinking critically about it, and making sure that their governments ensure that when forces are used on their behalf or threatened on their behalf, there’s an accountability regime to make sure it’s done so appropriately.

AL: It was an absolute pleasure having you with us today, Professor Chesterman; I hope you enjoyed it too. I want to thank you, and you know, to you and all our listeners for tuning in; and also a shout-out to our team, without which this podcast would not have been possible, at MEI, namely Jamaliah, Wei Chean and the events and communication team, MEI Associate Director Carl Skadian, and yeah, everyone who tuned in.

Please keep on following us on the various social media platforms and send us comments and feedback; we would love to hear back from you. In closing, I’d like to plug our next podcast, which would be with the founder of a private security company that’s actually transitioning into cyber-security. So until next time, thank you everyone.