Have Force, Will Travel: Privatizing War

Geoffrey Corn, a legal scholar retired from the US Army, notes:

“Necessity cannot be invoked without accepting the constraint of humanity, which is exactly how the Bush administration has interpreted the law. By rejecting this interpretation of the law of war, the Court endorsed the view that the Geneva Conventions ensure that no “armed conflict” falls outside the law – an interpretation that has guided U.S. military operations for decades. Common Article 3, according to the Court, is binding on the United States in the armed conflict with Al Qaeda as a matter of treaty obligation.” (See here)

Hamdan’s main focus was trial by military commission, but one of its most important side-effects is that it seems to grant a recognition to a non-state organization without territory, an identifiable system of government, and lacking any legal mechanism capable of ratifying the Geneva Convention. Yet it is covered by the Geneva Convention. One must ask what other types of non-state or private organizations could achieve this sort of legal recognition if al-Qaeda could?

The War on Terror has been privatized to a degree unknown in recent conflicts. Some private firms, of which Blackwater is the best known, are capable of all manner of security missions. Max Boot notes the presence of over 80,000 contracted civilians in Iraq. Many are involved in logistics, but there are dozens, if not hundreds of other firms with varying degrees of experience, operating in other realms of the war as well.

Some provide open-source intelligence collection and analysis services. Strategic Forecasting, for example, disseminates analysis to businesses. Other firms like Diligence go still further and fulfill roles that traditionally were those of governments. One of the functions Diligence supplies is a private threat-warning service:

Diligence was retained by a prominent European scientific research group to provide early warning of a possible attack by a violent activist organization that had accused the institution of testing products on animals and that had also begun to harass managers of the institution.

Following up on such information, Diligence also performed counterintelligence tasks:

Our research indicated that there was friction within the activist group. The less extreme element believed that the group’s violent actions not only alienated the public, but that violence would result in the facility being closed and testing moved to Eastern Europe, where research on animals would be under much less regulation and oversight. Diligence’s staff played on these concerns, and managed to provide warning of any planned attacks. Information was passed to the police, arrests were made and senior managers at the facility were protected from assault.

In additon to this capability, Diligence has a Baghdad subsidiary called Diligence Middle East (DME). A look at its case studies shows that their role in the Iraq conflict is far from trivial. Indeed, they even protect the mainstream media:

A major US news network in Baghdad received reliable information from independent sources of an imminent attack by armed insurgents against the hotel they used as offices and residences in Baghdad.

DME also provides high quality local security personnel to protect the facilities and staff of a number of international news agencies operating in Baghdad, and was approached to provide security personnel to protect against this immediate threat to the safety of the network’s staff.

Due to the urgency of the request DME immediately assigned additional security personnel to the hotel to increase the security measures already in place.

DME then ran comprehensive security courses to enhance the level of skills and knowledge of the existing hotel security guards, whilst continuing to provide the additional security personnel required until the threat had diminished. The attack did not take place and security was returned to the hands of the hotel.

Other examples abound. In 2003, The Washington Times noted the many different roles security firms find themselves filling in Iraq, such as these:
•Armed employees of Custer Battles, a Fairfax firm, guard Baghdad airport, manning the type of checkpoints often operated by American soldiers.

•Erinys, a British company with offices in the Middle East and South Africa, guards the oil fields.

•Global Risk, a British firm offering “risk management” advice, has the contract to provide armed protection for the Coalition Provisional Authority, the U.S.-led power.

•DynCorp of Reston has been hired to help train Iraq’s police.

The privatization of the War on Terror has been a de facto development, not a de jure one. A brief glance at the growth of privatizing war in this new century suggests that the market is responding to business start-ups’ rule # 1: “Find a need and fill it.”

At the same time there doesn’t seem to have been a conscious decision at any level of government to allow so many functions of warfare to be privatized. Instead, private organizations have become active participants in the war due to market forces, government need, and the explosion of information technology. Indeed many of the clients of these private firms are other private firms themselves, though governments are often the ultimate paymasters.

How does the Hamdan decision affect the perception of these firms, and their legal standing in international law?

Suppose a self-organized group of citizens took it upon themselves to interdict Al Qaeda communications of some kind, and managed to stop an attack (See here )?

If the citizens’ actions included breaking US laws and they were caught, could they then seek a military commission rather than a criminal trial, claiming to be combatants in a larger conflict? Hamden might allow this.

What if a private group of citizens in Europe created an underground railroad to spirit away to the US Europeans threatened by the growth of militant Islam, and in the process broke several European laws? (See here.)

Are they combatants, criminals, or heroes? How will the government decide?

Finally, if Al Qaeda members can be subject to the Geneva Convention, why not members of other non-state groups that threaten the US, and whose members languish in the US court-system? What of members of the violent Central American gang MS13? If the US figures out a way to try Al Qaeda members under military commissions, why not declare the same rules to apply to international organizations that straddle the line between crime and terrorism?

Such scenarios seem far-fetched, but they may be upon us sooner than we might suspect.

Josh Manchester authors the blog “The Adventures of Chester”, and has served overseas as a US Marine officer.