MERCENARIES UNBOUND

Private military services are big business. Currently, there are hundreds of firms that generate over $100 b a year in revenue (about 1/4 of the entire US military budget, and if taken in aggregate the second largest military in the world) and is growing at many times the rate of the DoD (Department of Defense).

PMCs (private military corporations) are central to the US effort in Iraq. With between 15,000 PMC (Update: 20,000) mercenaries in Iraq, they represent the second largest allied military force in theater. They are also used extensively in hot spots across the world (over 50 countries). Given this widespread use, large size, and the sensitive nature of their services; it is surprising that the industry is relatively free of regulation. P.W. Singer (author of Corporate Warriors), wrote an essay on the law and PMCs called, "War, Profits, and the Vacuum of Law: Private Military Firms and International Law" (PDF). In the essay he provides a concise overview of the current laws that relate to PMCs:

• There is little local control. All but few states have few statutes that even recognize PMC's exist. If a nation puts too much pressure on a firm, it can simply shop nations for a permissive environment in which to base (example: Executive Outcomes). In fact, all the mechanisms typically used multi-nationals to avoid taxation or labor/environmental regulations are available to PMCs to avoid oversight. For those states in which PMCs typically operate, the legal structures and political environments are too weak to challenge PMC usage and practices (case in point is the bad behavior of Dyncorp employees in Bosnia).
• There are few international controls. International conventions/laws propose a restrictive test for mercenary status (which is easy to circumvent via legal means). Further, the corporate nature of current mercenary efforts makes legal action against individual employees doubtful, particulary when the corporation is sanctioned by a state (corporations working in Iraq are sanctioned by the US State Department). Singer sums it up: "The general result is that, contrary to common belief, a total ban on mercenaries does not exist in international law. More importantly, the existing laws do not adequately deal with the full variety of private military actors. That is, they are specifically aimed at only the individuals working against national governments or politically recognized movements of national liberation."

Over the long-run, there will be a regulatory regime to regulate PMCs. The most likely location for an oversight body will be in the UN (which will determine whether a PMC is sanctioned or not according to conventions). Additionally, enforcement will likely be done by national governments in support of the world court. This improvements to the existing control system will likely consist of:

• Standards of conduct and quality. This will require audits.
• Rules for the treatment of PMC employees if captured. A Geneva convention for UN sanctioned PMCs is in order.
• Rules on when PMCs may be employed. This difficult subject will require substantial negotiation by all parties.
  

Until these rules are adopted and enforced globally, there is the potential of severe problems. These include:

• The trial and execution of PMC employees for war crimes (they are not protected by the Geneva conventions). This is very likely to occur in Iraq.
• Gross misconduct by untrained, unqualified PMC personnel in a war zone.
• The establishment and operation of PMCs that operate against the international community of nations.