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The State, Control of Violence, and the Private Military Corporation

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Legal Control of the Private Military Corporation

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Abstract

This chapter examines nation-states and PMCs in the domestic context. It conceptualizes the PMC somewhat differently in that the PMC in the literature follows a taxonomy focusing exclusively on problems associated with foreign activity. While to do so is both heuristically sound and reflective of the majority of concerns about the PMC, to a certain extent it ignores the 8001b gorilla in the room. This chapter conceptualizes the PMC as an organized, armed, well-financed private group in its home state. Such groups are usually referred to as paramilitary, which indeed they are, just as the PMC is. While paramilitaries may have different motivations in addition to profit, they are engaged in the same fundamental activities of changing the distributions of the spoils of war and other violence. The chapter begins with a review of the nation-state and related notions of sovereignty, including the monopoly of violence. It then turns to examine in detail the Rule of Law and constitutional limitations. Next, it reviews the privatization of defense and issues surrounding domestic accountability. Finally, it turns to examine the nation-state’s use of PMCs extraterritorially. Assimilated into this analysis is the role of the PMC as a foreign policy tool. The analysis will be underpinned by five case studies in the contemporary international context: Iraq—Supplementing unilateral action, Sudan—Avoiding public scrutiny, East Timor—Honoring international commitments, Equatorial Guinea—Advancing domestic values on the international stage, and the Balkans—Achieving conflicting objectives by sleight of hand.

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Notes

  1. R. Pound, “Law and the State: Jurisprudence and Politics,” Harvard Law Review, 57 (1944), 1193–236.

    Article  Google Scholar 

  2. J. Maogoto, International Criminal Law and State Sovereignty, chapter 1. See also S. Neff, Friends But No Allies: Economic Liberalism and the Law of Nations (New York: Columbia University Press, 1990), chapter 1.

    Google Scholar 

  3. C. Warbrick, “States and Recognition in International Law,” in Evans (ed.), International Law (Oxford: Oxford University Press, 2003), pp. 205–6.

    Google Scholar 

  4. O. C. Warbnck, States and Recognrtion 111 international Law, pp. 213–14. Discussed in context in A. Anghie, “Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law,” Harvard International Law Journal, 40 (1999). 1.

    Google Scholar 

  5. J. Bodin (ed.), Les SixLivres de laRepublique, 1962). Cited and discussed in J. Maogoto, International Criminal Law and State Sovereignty, pp. 8–11.

    Google Scholar 

  6. Ibid., p. 14 (italics omitted). As Maogoto acknowledges, this traditional view of sovereignty is being challenged on several fronts. An insightful comment is I. Simonovic, “Relative Sovereignty of the Twenty First Century,” Hastings International & Comparative Law Review, 25 (2002), 372.

    Google Scholar 

  7. M. Weber, The Theory of Social and Economic Organization (New York: Oxford University Press, 1947) p. 154.

    Google Scholar 

  8. For a general review, see E. A. Nordlinger, Soldiers in Politics: Military Coups and Governments (Englewood Cliffs: Prentice Hall, 1977)

    Google Scholar 

  9. for a more critical examination focused on a specific case, arguing among other things that a military coup is part of the normal political process, see J. S. Fitch, The Military Coup d’État as a Political Process: Ecuador, 1948–1966 (Baltimore, MD: Johns Hopkins, 1977).

    Google Scholar 

  10. P. Stälenheim, C. Perdomo and E. Sköns, “Military expenditure,” in SIPRI Yearbook 2007 (Oxford: Oxford University Press, 2007) 267–297, p. 267.

    Google Scholar 

  11. Marsh, “Two Sides of the Same Coin? The Legal and Illegal Trade in Small Arms,” The Brown Journal of World Affairs, 9 (2002), 219, p. 223. See the detailed and well-researched article of Amnesty International, A Catalogue of Failures: G8 Arms Exports and Human Rights Violations (May 19, 2003).

    Google Scholar 

  12. See discussion in P. Williams, “Transnational Organized Crime and International Security,” in Gamba and Meek (eds.), Society under Siege: Crime, Violence and Illegal Weapons (vol. 1), (Pretoria, SA: Institute for Security Studies, 1997), R. T. Naylor, “The Rise of the Modern Arms Black Market and the Fall of Supply-side Control,” in Society under Siege, and A. F. Musah and R. Castle, “Eastern Europe’s Arsenal on the Loose: managing light weapons flow to conflict zones” (May 1998). Retrieved September 5, 2007, from http://www.basicint.org/pubs/Papers/BP26.htm.

    Google Scholar 

  13. S. Chan and W. Safran, “Public Opinion as a Constraint against War: Democracies’ Response to Operation Iraqi Freedom,” Foreign Policy Analysis, 2 (2006), 137.

    Article  Google Scholar 

  14. United States V. Emerson, 270 203 (5th Cir. 2001), holding that the right is individuai, and Nordyke v. King, 319 1185 (9th Cir. 2003), that the right is collective. For discussion, see R. Hardaway, E. Gormley and B. Taylor, “The Inconvenient Militia Clause of the Second Amendment: Why the Supreme Court Declines to Resolve the Debate over the Right to Bear Arms,” St. John’s Journal of Legal Commentaty, 16 (2002), 99.

    Google Scholar 

  15. C. Edwards, “Democratic Control of Police: How 19th Century Political Systems Determine Modern Political Structures,” paper presented at the History of Crime, Policing and Punishment Conference convened by the and held in Canberra, (December 9–10, 1999), p. 2; and generally, C. Edwards, Changing Policing Theories for 21st century societies, 2nd edn (Leichhart: Federation Press, 2005).

    Google Scholar 

  16. See, for example, the survey in D. Dixon, Law in Policing: Legal Regulation and Police Practices (Oxford: Clarendon Press, 1997).

    Google Scholar 

  17. J. Freeman, “Extending Public Law Norms Through Privatization,” Harvard Law Review 116 (2003), p. 1287.

    Article  Google Scholar 

  18. J. E. Stiglitz, Globalization and its Discontents (New York: Norton, 2002), pp. 53–61.

    Google Scholar 

  19. A. Markusen, “The Case against Privatizing National Security,” Governance: The International Journal ofPolicy, Administration and Institutions, 16 (2003), 471, p. 471.

    Article  Google Scholar 

  20. For example, governments have been required to bring plants and services up to particular standards to render them marketable; further, it is not uncommon for state-owned enterprises to be sold at prices set well below value. M. Hossain and J. Malbon (eds.), Who Benefits from Privatisation? (Taylor & Francis Group, 1998).

    Google Scholar 

  21. See, for example, A. Brown, “The Economics of Privatisation: Case Study of Australian Telecommunications,” in Hossain and Malbon (eds.), Who Benefits from Privatisation? (Taylor & Francis Group, 1998).

    Google Scholar 

  22. See, for example, H. Zinn, A People’s History of the United States (New York: HarperCollins Publisher Inc., 1980), pp. 11–12.

    Google Scholar 

  23. W. Blum, Killing Hope: U.S. Military and CIA Interventions since World War II, (Monroe ME: Common Courage Press, 1995).

    Google Scholar 

  24. For a narrative of the events, see the account of the barrister involved in proceedings in the USA, G. Robertson, The Justice Game (Sydney: Random House Australia (Pty) Ltd, 1999), pp. 242–62.

    Google Scholar 

  25. C. Lehnardt, Regulating the private commercial military sector (New York: Institute for International Law and Justice, New York University School of Law, n.d.), p. 8.

    Google Scholar 

  26. Aristotle, On Rhetoric: A Theory of Civic Discourse (Oxford: Oxford University Press, 1991).

    Google Scholar 

  27. R. Peerenboom (ed.), Asian Discourses of Rule of Law: Theories and Implementation of the Rule of Law in Twelve Asian Countries, France and the U.S. (1 ed.), (Oxford: RoutledgeCurzon, 2004), p. 2.

    Google Scholar 

  28. Prosecuting an action in this context is very difficult for a variety of reasons. The law may, in straightforward terms, prohibit a government from declaring war or using its military without democratic approval-but a court may not consider a PMC contract as falling within its scope. Consider, for example, the various efforts made to litigate questions related both to the Vietnam and Iraq wars in US courts, as well as the concerted attempts by governments to pervert and avoid applicable laws. J. Maogoto and B. Sheehy, “Torturing the Rule of Law: USA and the Post 9–11 Legal World,” St. John’s J. of Legal Commentary, 21 (2007), pp. 689–725.

    Google Scholar 

  29. S. G. Brennan, “The Purpose and Scope of Judicial Review,” in Taggart (ed.), Judicial Review of Administrative Action in the 1980’s: Problems and Prospects (Oxford: Oxford University Press, 1986), p. 19.

    Google Scholar 

  30. S. de Smith, H. Woolf and J. Jowell, de Smith’s Judicial Review of Administrative Action, 4th edn (London: Sweet & Maxwell, 1980), p. 3.

    Google Scholar 

  31. S. A. Mason, “The High Court as Gatekeeper,” Melbourne University LR, 24 (2000) 784, p. 788.

    Google Scholar 

  32. See, for example, H. W. Ballantine, “Constitutional Limitations on the War Powerq,” Viginia Law Review, 3 (1918), 721–729.

    Google Scholar 

  33. See discussion in J. K. Elsea, M. J. Garcia and T. J. Nicola, Congressional Authority to Limit U.S. Military Operations in Iraq (Washington: Congressional Research Service, 2007), p. 14.

    Google Scholar 

  34. S. Dinnen, R. May and A. Regan (eds.), Agreement for the Provision of Military Assistance between the Independent State of Papua New Guinea and Sandline International (Canberra: Research School of Pacific and Asian Studies, Australian National University (ANU), 1997) at para. 4.1 (assigning Papua New Guinea’s contractual responsibilities). The agreement delegated far-reaching military command authority to Sandline’s personnel: Immediately on signing this agreement the state automatically grants to Sandline and its personnel all approvals, permissions, authorizations, licenses and permits to carry arms, conduct its operations and meet its contractual obligations without hindrance, including issuing instructions to PNG defense forces personnel to cooperate fully with Sandline commanders and their nominated representatives. All officers and personnel of Sandline assigned to this contract shall be enrolled as Special Constables, but hold military ranks commensurate with those they hold within the Sandline command structure and shall be entitled to give orders to junior ranks as may be necessary for the execution of their duties and responsibilities.

    Google Scholar 

  35. J. Yoo, “Using Force,” University of Chicago Law Review, 71 (2004), 729, p. 735.

    Google Scholar 

  36. Shared by M. A. Murphy, “A ‘World Occupation’ of the Iraqi Economy? How Order 39 Will Create a Semi-Sovereign State,” Connecticut Journal of International Law, 19 (2004), 445.

    Google Scholar 

  37. M. Foucault, “Neitzche, Genealogy and History,” in Rabinow (ed.), The Foucault Reader (New York: Pantheon, 1984), p. 85.

    Google Scholar 

  38. E. Bernales Ballesteros, Report on the Question of the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of People to Self Determination: UN Econ & Soc Council, 1998, para. 50, reads: The fact that a Government hires mercenaries or turns to “qualified” companies that provide mercenary services for its own defence and to strengthen positions during armed conflicts should not be invoked in claiming that its action is legal. A Government is endowed with legitimacy in order to work within its constitutional framework and that of the international treaties to which it is a party. Under no circumstances, however, may they use the power entrusted to them to engage in acts that are contrary to self-determination, to jeopardize the independence and sovereignty of the State itself or to consent to acts that may do irreparable harm to the life and security of the inhabitants.

    Google Scholar 

  39. A. Leander and R van Munster, “Private Security Contractors in the debate about Darfur: Reflecting and Reinforcing Neo-Liberal Governmentality,” International Relations, 21 (2006), 201.

    Article  Google Scholar 

  40. A. Leander, Regulating the Role of PMCs in Shaping Security and Policy, (Copenhagen: Copenhagen Business School, n.d.), p. 26.

    Google Scholar 

  41. J. K. Elsea, Private Security Contractors in Iraq: Background, Legal Status, and Other Issues (Washington: Congressional Research Service, 2007). In her report, Elsea cites or refers to Brooks (ten times), Peter Singer (six times), Deborah Avant (twice), Simon Chesterman (once), and Fred Schreier (once).

    Google Scholar 

  42. J. Harding, “Background briefing on Diamond Mercenaries of Africa” (1996), quoted in A. F. Musah, “Privatization of Security, Arms Proliferation and the Process of State Collapse in Africa,” Development and Change, 33 (2002), 911, p. 11.

    Google Scholar 

  43. D. Brooks, “Hope for the `Hopeless Continents’: Mercenaries”, Traders: Journal for the Southern African Region, 3 (2000b), pp. 1–37.

    Google Scholar 

  44. M. Staff, Additional Information for Hearing on Private Security Contractors: Committee on Oversight and Government Reform, 2007, p. 3.

    Google Scholar 

  45. J. Christoff, Stabilizing and Rebuildinglraq: Coalition Supportand International Donor Commitments: GAO-07–827T (Washington: U.S. Government Accountability Office, 2007).

    Google Scholar 

  46. See also P. Dombrowski and R. A. Payne, “Global Debate and the Limits of the Bush Doctrine,” International Studies Perspectives, 14 (2003), 395.

    Article  Google Scholar 

  47. For an evaluation see S. Patrick, “Beyond Coalitions of the Willing: Assessing U.S. Multilateralism,” Ethics & International Affairs, 17 (2003), 37.

    Article  Google Scholar 

  48. Noted as such in J. K. Elsea, Private Security Contractors in Iraq: Background, Legal Status, and Other Issues (Washington: Congressional Research Service, 2007), pp. 25–6

    Google Scholar 

  49. and P. Singer, The Private Military Industry and Iraq: What Have We Learned and Where to Next? (Geneva: Geneva Centre for the Democratic Control of Armed Forces, 2004a), p. 6.

    Google Scholar 

  50. M. Staff, Additional Information for Hearing on Private Security Contractors: Committee on Oversight and Government Reform, 2007), p. 2.

    Google Scholar 

  51. J. K. Elsea, Private Security Contractors in Iraq: Background, Legal Status, and OtherIssues (Washington: Congressional Research Service, 2007), p. 3.

    Google Scholar 

  52. M. Staff, Additional Information for Hearing on Private Security Contractors: Committee on Oversight and Government Reform, 2007), p. 2.

    Google Scholar 

  53. J. K. Elsea, Private Security Contractors in Iraq: Background, Legal Status, and Other Issues (Washington: Congressional Research Service, 2007). Several months later still holds a 20,000 figure.

    Google Scholar 

  54. J. Christoff, Stabilizing andRebuilding Iraq: Coalition Support andInternational Donor Commitments: GAO-07–827T. (Washington: US Government Accountability Office, 2007).

    Google Scholar 

  55. J. K. Elsea, Private Security Contractors in Iraq: Background, Legal Status, and Other Issues (Washington: Congressional Research Service, 2007), p. 25, P. Singer, The Private Military Industry and Iraq, p. 10.

    Google Scholar 

  56. “Africa US PMC: Private Military Companies Washington’s use of private companies is challenging AU precepts,” Africa Research Bulletin, 44 (April 2007), 17024.

    Google Scholar 

  57. Noted in the context of Australian foreign policy in G. Smith and D. Lowe, “Howard, Downer and the Liberal’s Realist Tradition,” Australian Journal of Politics and History, 51 (2005), 495.

    Google Scholar 

  58. B. Simpson, “Solidarity in an Age of Globalization: The transnational movement for East Timor and U.S. foreign policy,” Peace & Change, 29 (2004), 453.

    Article  Google Scholar 

  59. N. Wheeler and T. Dunne, “East Timor and the new humanitarian interventionism,” International Affairs, 77 (2001), 805, p. 807 ff.

    Article  Google Scholar 

  60. Started under the CPA, see M. A. Murphy, “A ‘World Occupation’ of the Iraqi Economy? How Order 39 Will Create a Semi-Sovereign State,” Connecticut Journal of International Law, 19 (2004), 445

    Google Scholar 

  61. and A. K. Audi, “Iraq’s New Investment Laws and the Standard of Civilization: A Case Study on the Limits of International Law,” Georgetown Law Journal, 93 (2004), 335.

    Google Scholar 

  62. For broader discussion, see K. E. Boon, “‘Open for Business’: International Financial Institutions, Post-conflict Economic Reform and the Rule of Law,” New York University Journal of International Law & Policy, 39 (2007), 513.

    Google Scholar 

  63. See N. Chomsky and R. W. McChesney, Profit Over People: Neoliberalism & Global Order, 1 (New York: Seven Stories Press, 1999), pp. 68–72 (asserting that US exportation of American “values” is simply a facade that allows American oversight)

    Google Scholar 

  64. see also H. Zinn, A People’s History of the United States (charting recourse to Wilsonian idealism as a cloak for predatory foreign policy initiatives). See discussion in C. B. D. Grant, U.S. Military Expertise for Sale: Private Military Consultants as a Tool of Foreign Policy (US Army War College, 1998).

    Google Scholar 

  65. N. Hughes, “Democracy and Imperial Rivalry in Equatorial Guinea,” Review of African Political Economy, 23 (1996), 442.

    Article  Google Scholar 

  66. Parts of this chapter were drawn from earlier research which was incorporated into a co-authored article: V. Newell and B. Sheehy, “Corporate Militaries and States,” pp. 67–101. The section introducing regulation was drawn from B. Sheehy, “Rethinking Securities Regulation: A Comparative Study of ASC, NYSE and SGX,” The Corporate Governance Law Review, 2 (2006), p. 191.

    Google Scholar 

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Authors and Affiliations

  1. RMIT University, Australia

    Benedict Sheehy (Senior Lecturer)

  2. University of Manchester, UK

    Jackson Maogoto (Senior Lecturer)

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  1. Benedict Sheehy
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  2. Jackson Maogoto
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  3. Virginia Newell
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© 2009 Benedict Sheehy, Jackson Maogoto, and Virginia Newell

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Sheehy, B., Maogoto, J., Newell, V. (2009). The State, Control of Violence, and the Private Military Corporation. In: Legal Control of the Private Military Corporation. Palgrave Macmillan, London. https://doi.org/10.1057/9780230583016_4

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