Dealing with the Corporate Dogs of War
Since the March 31 killing and mutilation in Fallujah of the four contractors working for North Carolina-based Blackwater Security Consulting, setting the current round of conflict in Iraq's volatile "Sunni triangle," various justifications have been advanced for the brutal attack. One of the more interesting rationales was proffered by Sabah al-Mukhtar, an Iraqi lawyer who told an online discussion hosted by IslamOnline.net that the four "may [have been] civilians in normal life," but were in fact "mercenaries who [were] contracted by the occupying power." In response to a question posed by a British student named Sharif, al-Mukhtar argued that, as "mercenaries," the four slain contractors "have no immunity in international law" and were "legitimate targets for resistance to the occupation." Al-Mukhtar's argument is compelling in that it contains a kernel of verisimilitude-one that points to a need for a radical updating of international law to conform with the realities of contemporary global security activities.
Historically, the modern international system has frowned upon the existence-much less the use-of mercenaries, viewing private military forces as a threat to the Weberian sovereign state's monopoly on the legitimate means of force. There was certainly a basis for this hostility towards private armed forces. In Africa alone, one recalls the international mercenaries who helped precipitate the Congo crisis of 1964 by fighting for the secessionists in Katanga before aligning themselves with the regime of Moïse Tshombe, as well as those who fought in the Biafran War in Nigeria between 1967 and 1970. Mercenaries not only fought alongside secessionists, but were also hired to overthrow established governments as was the case in both 1970 and 1975, when French and German elements were used in abortive efforts to overthrow Guinea's Marxist despot, Ahmed Sékou Touré. One particularly colorful post-colonial condottiere, the Frenchman Robert "Bob" Denard, was especially notorious for overthrowing the government of Comoros no fewer than three times: in 1975, when he overthrew President Ahmed Abdallah twenty-eight days after the island chain's unilateral declaration of independence from France and helped install Ali Soilih; in 1978, when he overthrew Soilih and installed Abdallah; and in 1989, when he led another coup that resulted in Abdallah's death and attempted, unsuccessfully, to seize control for himself. Given this record, it is not surprising that the member states of Organization of African Unity adopted a Convention for the Elimination of Mercenarism in 1977.
The International Convention obliged the signatories to "not recruit, use, finance or train mercenaries and shall prohibit such activities in accordance with the provisions of the present Convention" (Article V). While the Convention only entered into force in 2001-and then only for the twenty-two states (none of them major powers) that had ratified it-its adoption by the General Assembly nonetheless serves as an indicator of a certain bias in international law against the military activities of private parties, as counselor al-Muhktar argued in his justification for the targeting of the four contractors in Fallujah.
On the other hand, there seems to be an increasing amount of state practice-itself the basis of a ius cogens argument of general acceptance-in favor of the activities of private military companies (PMCs). Between 1991 and 1995, for example, the government of Sierra Leone teetered on the verge of total collapse in the face of an onslaught by rebels of the Liberian-backed Revolutionary United Front who seized Sierra Leone's rich diamond mines and carried out vicious campaign of terror that included the torching of homes and businesses and the hacking to death of hapless civilians or at least the chopping off of their hands and feet. After the debacles in Somalia, Rwanda, and the Balkans, the international community was reluctant to be drawn into what seemed to be another of those intractable conflicts. So the Sierra Leonean government turned to Executive Outcomes (EO), a South African PMC that employed veterans of demobilized apartheid-era elite military and intelligence units including the 32 Buffalo Battalion which waged counter-insurgency warfare in Angola and Namibia, the Koevoet Battalion which battled the South-West African People's Organization (SWAPO) during the latter's independence struggle in Namibia and the Civil Cooperation Bureau, which carried out covert assassinations of members of the African National Congress and other opposition groups.