As far back as the legendary Punic Wars, certain armies and warfighters have given their allegiance to a paycheck, rather than a flag or nation.[1] Carthage, the powerful maritime empire, frequently “hired its own swords” to engage in battles on land, as it was a wealthy civilization with a prowess for warfare by sea.[2] The use of “hired guns” can be traced even further back in history, showing that the practice of employing mercenaries is as old as warfare itself.[3] What was once known as a “mercenary army” is better known today as a private military company (“PMC”). PMCs have taken on a growing role in the modern global economy that international law has either not caught up with or chosen to ignore.[4]
When the public thinks of PMCs, certain companies or names tend to come to mind, including Blackwater, the company linked to the 2007 Nisour Square massacre in Iraq[5], and the Wagner Group, the prominent Russia-based PMC from the Ukraine-Russia conflict.[6] However, PMCs are deployed far beyond these regions in places the public and even most politicians would find surprising.[7] PMCs in the modern era were traditionally hired in by corporations to safeguard assets like oil fields, mines, or tankers.[8] However, PMCs have increasingly shifted toward front-line combat and intelligence collection.[9] These uses benefit countries by reducing public liability for any subsequent violations of international human rights law.[10] Countries like the United States (“U.S.”) and Russia can deny having troops in conflict zones, while using PMCs to carry out national security goals they don’t want to take any public or international heat for.[11] This ability to work in the shadows – hidden from the public eye – coincides with where these companies operate legally.[12] PMCs work in these legal grey zones, free from the restrictions governing traditional military forces, which are imposed by state governments, allowing war crimes and human rights violations to occur across the globe.[13]
These PMCs are not just a bunch of retired military veterans getting together with their own equipment to go “running and gunning” because they can’t find anything else to do.[14] There are mountains of cash supporting these companies, and it brings some real serious fire power.[15] Wagner mercenaries, who had been a part of the conflicts occurring in Syria, have been reported to have mortars, howitzers, tanks, grenade launchers, armed personnel carriers, and even surface-to-air missiles.[16] Not to be outdone, the U.S. has spent over $17 billion on PMCs in the last three years, despite high-profile incidents like the 2007 Nisour Square massacre that Blackwater was responsible for.[17] PMCs accounted for fifty-two percent of the U.S. workforce in Iraq and Afghanistan during operations in 2011.[18]
Today, there are legitimate uses for PMCs that justify spending the money, which is part of the reason their usage rate has been so high for the U.S.[19] PMCs in the modern era have been used for logistics purposes, training forces, and security.[20] Russia’s notorious PMC, Wagner, has been used in Africa as a security service for mining and drilling companies in countries going through civil wars.[21] These natural resources – mines and oil fields – can sometimes be used as payment for the PMC as well.[22] Non-governmental organizations (“NGO”s) enjoy the benefits of hiring PMCs as well.[23] Humanitarian NGOs that venture into warzones have been known to hire PMCs for the purpose of providing security for their workers who work to ensure access to medical care, food, water, and shelter.[24] PMCs have even been hired by NGOs to help protect wildlife from poachers.[25]
The problem with PMCs is not their justifiable uses – or even their prevalence in use – by countries like the U.S. and Russia, the problem is the lack of law surrounding them.[26] PMCs have played a role in countless atrocities across the globe.[27] As recently as 2022, several Wagner fighters were charged with war crimes for allegedly torturing and murdering civilians in Motyzhyn, Ukraine.[28] Their photos and names were even released by Ukraine; however, none have been brought into custody.[29] The U.S. has had its own problems beyond the Blackwater 2007 Nisour Square massacre; the investigation following the massacre led authorities to uncover more evidence of widespread attacks on Iraqi civilians and property.[30] The five men who were charged under U.S. law were initially dismissed for tainted evidence before being recharged and convicted.[31] However, these men were pardoned in 2020 by President Donald Trump.[32] International Human Rights Law (“IHRL”) played no part in holding these men accountable, and when the PMC soldiers were charged domestically, the domestic justice system ultimately let down the families of the victims—there was no justice for what was done.[33] More recently, a 2019 United Nations (“U.N.”) report wrote of the human rights violations committed by PMCs, alluding to a lack of oversight from contracting nations.[34] There is virtually no way to hold PMCs accountable for any atrocities they commit consistently across the globe.[35]
The only significant international regulation in the modern era came in 2010, when governments, NGOs, and industry experts created the International Code of Conduct for Private Security Service Providers (“ICoC”).[36] This code requires PMCs to adhere to protocols to secure U.N. contracts.[37] These protocols involve adhering to human rights, the rule of law, and transparency.[38] However, many governments disregard these guidelines, as they are only voluntary[39]. For example, the U.S., while signing onto the ICoC, did not require its PMCs to agree to comply.[40] Even countries with domestic laws regarding PMCs are ignored.[41] For instance, while PMCs are technically illegal under Russian law, the Wagner Group – which must swear allegiance to Russia – has operated for years across the Middle East, North Africa, and Ukraine.[42]
There seems to be no end in sight to the use of PMCs to cause harm, as the amount of money spent by major countries and NGOs on them is just too great.[43] Whether the uses are justifiable or not, PMCs will continue to play a role in modern conflict.[44] Reform is needed regarding how PMCs, or the countries/NGOs contracting them, can be held to accountable when human rights violations or war crimes occur.[45] Potential solutions include reclassifying contractors as combatants, holding countries accountable for violations committed by PMCs, and establishing better monitoring and reporting systems for PMC activities.[46]
The solution that could provide the greatest change in how PMCs operate, along with their accountability under domestic and international law, could involve creating more access to and availability of reporting.[47] If local actors or U.N. organizations are given more funding to monitor, investigate, and report PMCs, there is a greater likelihood they will be held accountable, at least under domestic law.[48] The more publicity these atrocities get, the more likely a government like the U.S. is going to feel pressure to investigate the situation; this could lead to the punishment of the PMC itself, not just the individual personnel involved. There is a long way to go with holding PMCs accountable, but bringing their actions from the shadows and into the light is possibly the first step in holding them and their countries accountable.
[1] Emery, Kevin Patrick, “Carthaginian Mercenaries: Soldiers of Fortune, Allied Conscripts, and Multi-Ethnic Armies in Antiquity” (2016).
[2] Id.
[3] Id.
[4] Carlos Díaz, Ekaterina Zepnova, Felip Daza, Giulia Campisi & Nora Miralles, Blurring the monopoly on violence: Private Military and Security Companies and coercive state power, TNI Longreads (May 2021), https://longreads.tni.org/stateofpower/blurring-the-monopoly-on-violence-private-military-and-security-companies-and-coercive-state-power.
[5] Dara Lind, Why Four Blackwater Contractors Were Just Now Convicted of Killing 17 Iraqi Civilians in 2007, Vox (Oct. 23, 2014),https://www.vox.com/2014/10/23/7047519/blackwater-trial-nisour-square-massacre-2007-guilty-convicted.
[6] Britannica, Wagner Group, https://www.britannica.com/topic/Wagner-Group (last visited Nov. 16, 2024).
[7] Wojciech Pałka, The Awakening of Private Military Companies, Warsaw Institute, https://warsawinstitute.org/awakening-private-military-companies/ (last visited Nov. 16, 2024).
[8] Alexandria Virginski, Turning Profit into a War Strategy, 41 Wis. Int’l L.J. 257 (2023).
[9] Jakob Gammons, Private Military Companies and the Law of Armed Conflict: Shining a Spotlight on Invisible Armies, 93 Miss. L.J. 1186 (2024).
[10] Virginski, supra note 8, at 263.
[11] Id.
[12] Id.
[13] Nils Melzer, Int’l Comm. Red Cross, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law 37-40 (2009), https://www.icrc.org/en/doc/assets/files/other/icrc-002-0990.pdf.
[14] Alexander Casendino, Soldiers of Fortune: The Rise of Private Military Companies and Their Consequences on America’s Wars,Berkeley Pol. Rev. (Oct. 25, 2017), https://bpr.studentorg.berkeley.edu/2017/10/25/soldiers-of-fortune-the-rise-of-private-military-companies-and-their-consequences-on-americas-wars/.
[15] Gammons, supra note 9, at 1207-1208.
[16] Emma Schroeder et al., Hackers, Hoodies, and Helmets: Technology and the Changing Face of Russian Private Military Contractors, ATLANTIC COUNCIL (July 25, 2022), https://www.atlanticcouncil.org/in-depth-research-reports/issue-brief/technology-change-and-the-changing-face-of-russian-private-military-contractors/.
[17] Gammons, supra note 9, at 1207-1208; Lind, supra note 5.
[18] Id. at 1197.
[19] Id. at 1197-1200.
[20] Id.
[21] Id.
[22] COUNCIL ON FOREIGN RELS., Coup-Proofing: Russia’s Military Blueprint for Securing Resources in Africa (2021). https://www.cfr.org/blog/coup-proofing-russias-military-blueprint-securing-resources-africa.
[23] Supra note 11.
[24] Id.
[25] Rosaleen Duffy, We Need to Talk About the Militarisation of Conservation, THE GREEN EUROPEAN J. (July 20, 2017), https://www.greeneuropeanjournal.eu/we-need-to-talk-about-militarisation-of-conservation/.
[26] Virginski, supra note 8, at 263.
[27] Center for Civilians in Conflict & Geneva Centre for Security Sector Governance, The Growing Use of Private Military and Security Companies in Conflict Settings: How to Reduce Threats to Civilians? 4 (2022).
[28] Lorenzo Tondo et al., Alleged Wagner Group Fighters Accused of Murdering Civilians in Ukraine, The Guardian (2022), https://www.theguardian.com/world/2022/may/25/wagner-group-fighters-accused-murdering-civilians-ukraine-war-crimes-belarus [https://perma.cc/T966-YXR4].
[29] Id.
[30] Editorial, A Growing Dependence on Contractors, N.Y. Times (Nov. 5, 2007), https://www.nytimes.com/2007/11/05/opinion/05iht-ediraq.1.8191567.html.
[31] Maggie Haberman & Michael S. Schmidt, Trump Pardons Two Russia Inquiry Figures and Blackwater Guard, N.Y. TIMES (2021).
[32] Id.
[33] Id.
[34] Special Rapporteur on Use of Mercenaries as a Means of Impeding the Exercise of the Right of Peoples to Self-Determination, U.N. COMM. ON HUM. RTS.
[35] Virginski, supra note 8, at 263.
[36] International Code of Conduct for Private Security Service Providers (ICoC) (2008), https://icoca.ch/the-code/.
[37] Id.
[38] Id.
[39] Daphne Richemond-Barak, Can Self-Regulation Work? Lessons from the Private Security and Military Industry, 35 Mich. J. Int’l L. 813 (2014).
[40] Ctr. for Civilians in Conflict, Privatizing War: The Impact of Private Military Companies on the Protection of Civilians 5 (Nov. 2022).
[41] Catrina Doxsee, Putin’s Proxies: Examining Russia’s Use of Private Military Companies, Ctr. for Strategic & Int’l Stud. (Sept. 15, 2022), https://www.csis.org/analysis/putins-proxies-examining-russias-use-private-military-companies.
[42] Id.
[43] Gammons, supra note 9, at 1207-1208.
[44] Casendino, supra note 14.
[45] Center for Civilians in Conflict & Geneva Centre for Security Sector Governance, supra note 26.
[46] Id.
[47] Id.
[48] Id.
