Document Type

Article

Disciplines

International Law

Abstract

In 1995, in Sierra Leone, a rebel insurgency brought the country to the brink of anarchy - or perhaps even past it. Rebels terrorized the countryside and, shut down the agriculture trade, and seized control of the economy's most valuable asset; its diamond mines. As foreign nationals and others fled the country, the rebels were advancing on the capital and appeared ready to take control of government, such as it was. But then a modem strike force ruthlessly counterattacked. Using sophisticated tactics and advanced weapons, including air power, they turned back the rebel advance and quickly took control of the diamond mines and other crucial national assets, stifling the rebellion.

This strike force was neither part of a national military nor a United Nations peacekeeping force. No such entity was interested in intervening in Sierra Leone at that time. Rather, the members of the strike force were the employees of a private firm, Executive Outcomes, based in South Africa.2 In this situation, a domestic political conflict was resolved through the action of a private company based in a foreign country, which acted pursuant to a private contract rather than the requirements of national and international law.

The action of Executive Outcomes in Sierra Leone was an early example of a trend in military operations that has greatly expanded in the following two decades. Increasingly, military conflicts involve armed combatants and military support personnel who work for private companies, rather than the armed forces of a particular nation. These private companies have an ever-growing client list, which includes: governments, who use private military firms as a replacement for or as a supplement to their own armed forces; multinational corporations or nongovernmental organizations operating in dangerous areas, who hire private firms to provide security when the police and military forces of local governments cannot or will not do so; and, in some cases, insurgent groups or rogue organizations, who have objectives that cannot be met without the best military force that money can buy.

The expanding use of private military firms raises a host of problems, particularly because the lines between the legitimate use of force and criminal activity can be hard to draw during political or social conflicts. These lines are even harder to draw when the duties of the private firms and their employees are defined by private contracts, not public law, and when these actors are not accountable to political authorities through the usual military chain of command.

This paper examines the legal structure that governs ordinary military action and describes the problems with attempting to extend that structure to the new phenomenon of private military firms. Private military actors cannot be regulated by that existing structure because it only applies to soldiers. And the legal rules that apply to private citizens generally are not effective at regulating the conduct of private soldiers because law and order usually has broken down in the places where conflicts occur, and the laws of the private soldiers' home countries lack extraterritorial reach. In the end, the rise of private military firms creates a novel problem of international law. This paper concludes that the most effective way to solve that problem is through the amendment and further development of the international treaties that currently govern ordinary military action so that they apply to all soldiers, whether they fight for private or national entities.

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