What’s wrong with mercenaries?

Soldiers can be court-martialled; mercenaries can’t. All things considered, I think we’d do better to have a larger number of sworn servicemembers and fewer people carrying guns on our behalf but receiving paychecks from contractors.

Eugene Volokh inquires, reasonably, what’s wrong with mercenary soldiers, who fight for money, given that most people do their jobs for money. But I think that reasonable question has some worrisome answers.

First, let me make two distinctions that I think Eugene elides:

— Between the fact that the employees of contract fighting forces get paid (and get paid, usually, better than the employees of regular armies) and the fact that their employers are for-profit businesses. It’s not unreasonable to worry about large amounts of armed force being accumulated by entities driven by profit-and-loss calculations. There’s nothing wrong per se with such calculations, but they may interact oddly with life-and-death ones: e.g., with respect to the obligation to minimize civilian casualties.

— Between a security guard, who fires only in direct self-defense or the direct defense of the property or person he guards, and a franc-tireur, who may engage in offensive operations. Brink’s arms its guards, but they don’t go hunting for robbers. Now I don’t know what limits the contractors in Iraq generally, or Blackwater (the outfit that employed the four Fallujah victims) specifically, operate under, but I don’t think they’re quite as restrained as Brink’s.

With that out of the way, there are three sets of concerns that apply to contract fighting forces:

1. Contract fighters don’t operate under the laws of war, and don’t qualify for protection under the Geneva Conventions. (Phil Carter has written on this.) They don’t have a command structure that subjects them to military discipline. If a Marine shoots an Iraqi civilian without justification, he’s subject to court-martial. That’s not true of an employee of an outfit such as Blackhawk, who would be vulnerable only to Iraqi civil justice, and not even to that if his company whisked him out of the country before he could be charged. That makes contract fighters potentially dangerous to civilians in the way soldiers of a well-disciplined army aren’t.

For example, the irregulars in the Salvadoran civil war (where Kos grew up) were notorious for rape and murder, including the murder of Archbishop Romero. So are the “paramilitaries” in Colombia. “Security” can mean merely guarding, but it can also be a euphemism for death-squad activity. That’s not to say that the four dead men were doing anything wrong, or that their company was. And it doesn’t at all justify indifference to the deaths of contractor employees in Iraq. But mercenary fighters generically have earned their bad reputation.

2. When bands of francs-tireurs become large and powerful enough to acquire political power through their military power, and to either defy the state or take it over, you have Renaissance Italy, the Germany of Wallenstein, or Chinese or Afghan warlordism. That’s bad news.

3. The private firms pay better than the regular military, and are using the money they get from public contracts to bid away experienced soldiers, leaving the Army short of skilled bodies. Why should we compete with ourselves in that way? Recall that the skills that ex-Seals and Delta Force grads sell to the private outfits were acquired at public expense.

All things considered, then, I think we’d do better to have a larger number of sworn servicemembers and fewer people carrying guns on our behalf but receiving paychecks from contractors.

Machiavelli would agree.

Update Phil Carter cites a Washington Post report showing that the Blackwater force in Iraq is acting as a fighting force, with its own helicopters (!), not just as “security,” and that it is doing so outside the command structure of the Coalition forces in Iraq. Phil is not a happy camper.

Phil does not, however, think the label “mercenary” properly applies to the employees of Blackwater and similar contract fighting forces. Darren Kaplan shows that the pejorative “mercenary” has now become a legal term of art, and is legally defined in a way that would not include Blackwater’s forces, because part of the definition of a “mercenary” in international law is someone not a national of a party to the conflict.

Several correspondents have raised additional issues about the use of contract fighting forces, including the Constitutional one: if the Executive can contract for military force, the Constitutional powers of the Congress with respect to the military can be badly diluted. That seems to me something worth worrying about.

Second update A reader inquires whether Blackwater employees, if captured by, e.g., Sadr’s militia, would qualify for POW treatment, or whether their lack of uniforms and military discipline would make them “unlawful combatants.” I’d like to hear opinions on that from any law-of-war experts reading this list. Another reader supplies a link to a WBUR-radio story about contract fighters captured by the FARC in Colombia, and not being helped by the U.S. government. I can’t vouch for the accuracy of the story, but WBUR generally does good work.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

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