Mercenaries and Just War Theory

Today's post is particularly out of left field (and particularly long-winded), as it is word for word my final essay for the subject Ethics of Global Conflict. Having never really considered the use of mercenaries in warfare, or even what the phrase "just war" even means, this was a thoroughly educational and interesting exercise. Though the essay itself is incredibly slapdash, the facts and ideas contained within are really quite fascinating if I say so myself. Do try and read to the end...

Though there are many moral issues concerning the discussion, nations that wish to adhere to Just War theory should feel free to employ mercenaries and private security/military contractors. The issues that exist around employing these groups as combatants stem largely from a misattribution of responsibility between states and private corporations, and the failure of international legislative bodies to adequately understand and respond to the changing role of mercenaries in contemporary politics.

Similarly, many of the moral issues surrounding mercenaries and PMCs derive from the (often implicit) belief that only soldiers are justified in engaging in combat, and that non-military combatants are essentially a moral transgression because they do not share this justification. This essay will endeavour to show that these moral objections are baseless and that mercenaries and PMCs are not strictly the “whores of war” that they have been called.

The definition of “mercenary” is a particularly contentious one. Because of the long history of mercenary groups and the vested interests inherent in creating a definition, a workable understanding has proved difficult to produce; this in turn has impeded attempts to regulate the activities of mercenaries in the present day. A comprehensive definition is that proposed by the British Foreign and Commonwealth Office, which divides mercenaries into three broadly distinct groups:

1. Soldiers of fortune and “volunteers” that enlist to fight on behalf of a cause or power for financial gain, and may possibly have an ideological motivation.

2. Servicemen enlisted in foreign armies, such as the Gurkhas and French Foreign Legion. Governments can recruit foreign nationals either temporarily or permanently to serve in their armed forces – this is a practice that predates the modern concept of a national standing army.

3. Private Military Contractors (PMCs) which provide a range of security and military services to both state and non-state groups. PMCs have become increasingly relevant to modern warfare and its ethical considerations since their rapid expansion in the 1990s.

Private military contractors have their roots in the condottieri of Renaissance Italy and the Free Companies of France, who acted as independent military forces which fought for states on a contract basis. The industry experienced a surge during the 1990s and PMCs have been deployed from Papua New Guinea to Angola, though they are most infamous for their deployment in Iraq following the 2003 invasion. Though private military contractors are popularly understood to provide combat personnel, they far more commonly serve a support role for their employers. This can take the form of advice or training, as well as logistics support and security operations – however, this does not preclude them from fighting as “the distinction between combat and non-combat operations is often artificial”.

A criticism commonly levelled against mercenaries is their “mercenary” motivation for fighting: the problem of combining “financial motivation and military force”. This leads to a distinction between soldiers and mercenaries, and in the case of PMCs, between commanders and businessmen. The argument put forward in favour of national military personnel over mercenaries is that soldiers are fighting for a single cause, which they presumably view as just, and that they in some way share in the state’s vested interest.

Mercenaries, on the other hand, fight for whoever holds their contract and will employ lethal force for financial gain rather than for furthering a national cause. This distinction seems jarring, though, when one considers that proper, altruistic motivation is not a requirement for soldiers and militaries often present themselves in terms of careers and financial gain when recruiting. Furthermore, a combatant who falls under the definition of “mercenary” may very well be ideologically motivated and could conceivably have a greater vested interest in the outcome than a soldier.

Pattison objects that rather than mercenaries lacking a suitable motive for fighting, the problem is “the presence of an unsuitable one”. He asserts that financial gain is an immoral motive for fighting, and one which is particularly highlighted when mercenaries offer their services to unjust causes such as drug cartels and dictators. However, though this is intended as a response to the claim that soldiers and mercenaries may share motivations and ideology, it fails to overcome this claim. His assertion that soldiers serving these groups are more justified stems from the questionable belief that these soldiers are motivated primarily by “misguided patriotism” and that mercenaries are fundamentally seeking “private gain”, and goes on to explain why the latter motive is unacceptable. However, he fails to address the underlying argument that soldiers as well as mercenaries can act with self-interest and the desire for private gain, and that therefore his all-important separation between the two becomes meaningless. To argue that soldiers have an acceptable motive simply by being soldiers is pointlessly circular and lacks the necessary supporting evidence.

Contrary to the popular concept of mercenaries as excessively violent and unrestrained combatants, Lynch and Walsh posit that employing fighters who are essentially neutral in a conflict can have positive moral effects. They argue that nationalism, xenophobia and revenge – all very realistic motives for war – are likely to be absent in third party combatants brought into a conflict, and that profit as a motive is far more conducive to rationality than national pride or other “higher” ideological motives, which can often lead to dehumanising the enemy and a “search for transcendental personal glory”. They cite Machiavelli, who accused Renaissance condottieri of lacking the necessary desire to slaughter the enemy and sacrifice their own lives for the Republic, and question the assumption that mercenaries, by their (purportedly) immoral and unsavoury nature, are more inclined to cause destruction and suffering than their soldier counterparts.

Just War theory is the conflation of two principles concerning warfare: firstly, that there exist a numbers of conditions that, when met, justify a declaration of war; and secondly, that there are proper principles to abide by when in a state of war. The first of these is referred to as ius ad bellum (“right to war”) and the second as ius in bello (“right in war”). Ius ad bellum (IAB) is principally concerned with the declaration of war and the legitimacy of the war itself; the conditions that must be met are:

Just cause – exactly what constitutes just cause is contentious, but common examples are self-defence against an unjust war or assisting an ally in similar circumstances. More controversially, causes such as humanitarian intervention and pre-emptive war have been considered “just” with regard to IAB.
Legitimate authority – this requires that military force only be utilised “if it is authorised by a political body that is widely recognised as having this power”. Again, it is contentious whether this allows for sub- or super-state national groups to legitimately wage war, or whether all states should be afforded this power regardless of their moral record.
Right intention – this stipulates that the war must be fought with the primary objective of fulfilling the just cause. If the just cause is, say, defending an ally from an unjust war then their defence must be the primary consideration while waging the war. Similarly, if a pre-emptive war is launched then the primary objective must be preventing the enemy’s capacity to launch the intended unjust attack.
Last resort – Military force is not permitted before other non-violent alternatives have been exhausted. These can include diplomacy or international intervention and adjudication. Without these prior steps – “within reasonable limits” – the war cannot be considered just.
Reasonable hope of success – this again refers back to the just cause: this time, the objectives laid out must be reasonably achievable and should not require great sacrifice or suffering on either side, especially with regard to non-combatants.
Proportionality – this simply demands that the harms caused by the conflict should not greatly outweigh the benefits.

Jus in bello (IIB) is concerned with the conduct of military forces within a war, and it stipulates that combatants must observe:
Discrimination – combatants in a war must discriminate between other combatants and non-combatants, and only target the former. Similarly, collateral damage involving non-combatants is to be considered when pursuing military objectives.
Proportionality – unlike the IAB definition of proportionality, it here means that force must be within proportion to the objectives being pursued and that “destruction beyond what is necessary to reach a military objective is morally suspect”.
Benevolent treatment of POWs – enemy forces which have surrendered and been taken into custody cease to be considered “engaged in harm” (though are still combatants and to be detained). Thus they should be treated with “benevolence” and not mistreated.
No means mala in se (“evil in themselves”) – this bans the use of weapons and tactics which are considered too destructive or immoral, such as mass rape, ethnic cleansing or weapons of mass destruction.

The use of private military contractors is most contentious when examined from the perspective of ius ad bellum. The first condition of IAB is just cause, and here is seems that PMCs must fail because “material gain” is specifically the kind of motive that the just cause stipulation is designed to guard against. This, however, is much like the issue of legitimate authority – the question is whether PMCs have the authority to open hostilities with those they are employed to fight. Those against the use of PMCs indicate that the corporate structure has no place in the contemporary understanding of legitimate authority.

This equivalence in authority between military and corporate, however, is misattributed; the contractor is not declaring war. Pattison writes “the employment of PMCs is largely consistent with the principle of legitimate authority... since states – not PMCs – tend to authorise the use of force”. Ultimately, this principle applies to all the points of ius ad bellum, since IAB is concerned with the declaration of war and PMCs do not actually declare war – the responsibility of adherence to IAB lies with those who employ the mercenaries.

The principle of ius in bello in a more troubling for PMCs since it has direct relevance to their activities in combat. However, though contemporary examples may surface of companies such as Xe Services (né Blackwater USA) violating the principles of IIB, this does not prove that PMCs inherently violate JWT any more than the historic excesses of national militaries prove that nations themselves violate JWT. The distinction that needs to be made is that many current PMCs and mercenaries are not subjected to the level of regulation and oversight that is necessary to ensure military forces comply with IIB.

Advocates of PMCs such as Malliard and contractor Triple Canopy’s CEO Ignacio Balderas argue that the industry needs far more stringent regulation from employers to ensure that the standards of Just War theory can be met by states employing mercenaries and contractors. None of the particular points of IIB are relevant to this discussion, since with sufficient regulation from states there is no reason for non-military combatants to commit any more egregious transgressions than soldiers themselves.

Despite arguments to the contrary, private military contractors and other mercenary groups do not, simply by their existence and deployment, violate the tenets of Just War theory. As a result, states which employ PMCs should not be considered to defy JWT. Though there are legitimate objections to the use of mercenaries from the perspective of JWT, most opposition is due to the conduct of contemporary contractors rather than what they fundamentally represent. States wishing to conform to the principles of Just War Theory should feel justified in employing mercenaries, especially with regard to the principle of ius ad bellum. However, these contractors should be subjected to strict regulation and oversight, especially with regard to ius in bello.

TL;DR - This one was particularly L, but hopefully it was R by a few people. Essentially, mercenaries cannot be considered to violate the concept of Just War by their very nature, and those who claim they do (which happens to be most people writing on the subject) are guilty of intellectually disingenuous scholarship. Cop that!