by Christopher T. Mayer, COL USA RET
Although mercenaries, international volunteers and other non-state armed groups have been a feature of armed conflict throughout history, the rise of new quasi-mercenary organizations presents a very modern threat to peace and stability – and to those who work in fragile environments. Non-state or semi-state combat providers exacerbate instability, undermine the State monopoly of violence, and de-legitimize contractor support to post-conflict stability operations. A new international effort is needed to address these threats and preserve the gains made in PMSC legitimacy over the past fifteen years.
To understand the current challenge it is important understand the context of armed contractor support and how we got here. Although mercenaries have been part of war throughout recorded history, the rise of the modern nation-state went along with a need for the State to assert a monopoly on the use of violence in the area over which the State claimed dominion. While mercenaries, privateers, militias, and private regiments continued into the enlightenment, these entities were strictly controlled by the State. The French revolution changed that, and the State now claimed sole proprietorship as well as authority over the means and methods of warfare. This new monopoly did not come at once or uniformly across all States and some governments – notably the U.S. government — resisted efforts by other – mostly European — governments. Russia, too, maintained the use of State-sponsored, but not State-owned military force, such as the Cossacks. All governments, however, continued to use some form of mercenary-like capability, most often through forces that required special tactical or technical expertise, such as scouts and aviators. Even the mass mobilization of WW2 only overshadowed but did not eliminate the use of mercenaries and mercenary-like organizations.
The end of that war and the beginning of decolonization changed the nature of private combat providers. Historically, mercenaries worked for a State paymaster. It was clear who that paymaster was, and mercenaries were (theoretically) under control of the State. This changed in post-colonial conflicts. Although States might be the ultimate paymaster and mercenaries might broadly work under State direction, lines of economy and authority were deliberately opaque – or non-existent. This created a threat to the State monopoly of force, and governments took action. Treaties and conventions came into being to prohibit mercenaries. The problem was that some of the States negotiating these treaties or conventions were also sponsoring mercenaries in some fashion or another. The conventions had to appear as though governments were outlawing mercenaries in general, while not specifically outlawing THEIR mercenaries. This intent is clear through the definition of mercenary as it exists in all three existing anti-mercenary conventions. There is a cumulative requirement for five or six elements, depending on the convention, all of which must be met for someone to be a mercenary. Proving all of these requirements is difficult. The few successful convictions of mercenarism were coupled with allegations of gross violations of human rights in the trial leading to that conviction. Also, the onus is entirely on the individual person. There is no accountability for a State that hires mercenaries. Despite these faults, the result was the creation of an anti-mercenary norm that limited, but has not eliminated, the use of mercenaries.
In the post-Cold War period, attention returned to armed civilians in armed conflict. Rather than a direct challenge to State monopoly of violence, the issue was identifying existing international laws that applied to these actors – now referred to as Private Military and Security Companies (PMSCs) — the legal and normative limits on the functions they could perform, and State responsibility to regulate and control them. Although the issue was still State-centric, States now sought the advice and counsel of other parties including academics, human rights organizations, and the PMSCs themselves. The outcome was a non-binding framework acknowledging existing international law and encouraging States to implement policies, law, and regulation to assure that international laws and norms were upheld. Unlike the anti-mercenary conventions, the product of this effort, The Montreux Document, addressed State responsibility, and to a lesser degree, the responsibility of the PMSCs as corporate entities. Follow-on efforts, including an International Code of Conduct for Private Security Service Providers and international management and operations standards for PMSCs, focused on the PMSCs and were true multi-stakeholder initiatives.
Once those initiatives were accomplished, however, major States regarded the objective as complete. Further development continued on the inertia of what had been achieved — but without further impetus, progress gave way to entropy.
As engagement by State actors waned, the use of private actors in armed conflict changed again, with the appearance of putatively non-state armed groups active in internal disturbances and armed conflict. Russian-affiliated entities such as the Wagner Group are the best known of these entities. Others include a further dozen or so Russian affiliated groups and organizations hired or recruited by Iran, the United Arab Emirates, and others. Unlike PMSCs, they have shadowy organizational structures with limited or no economic or criminal accountability. These organizations sometimes perform roles similar to PMSCs, but also engage in combat, and suppress domestic disturbances in support of despotic regimes. In most cases they clearly work for the interests of a State but without any effective evidence chain to that State. This enables effective – if implausible – deniability for the actions and sometimes even knowledge of these entities. In some cases, however, these organizations also appear to operate outside of the explicit direction of a State and may take actions – including combat – that seem to further the interest of some private actor or the company itself.
Although they fight in combat, these organizations carefully avoid one or more of the other essential elements of being a mercenary under international law. They do not meet the definition of PMSC, either, as combat is outside the scope PMSC services under The Montreux Document and its follow on initiatives and, in many cases, these organizations do not have a corporate structure essential to the legitimacy of PMSCs. They are then, neither mercenary nor PMSC. Despite these differences, most media, some academics, and not a few governments – notably Russia – deliberately equate these quasi-mercenary organizations with PMSCs that operate in compliance with Montreux, the standards, and applicable national law.
These quasi-mercenary organizations, or QMOs, present two threats to international stability. First, by operating at the edges or seams of existing international law, they facilitate or prolong armed conflicts and prop up authoritarian regimes that are guilty of known human rights abuses. As described above, this is done in a way that allows State sponsors to deny accountability for that activity. Second, the deliberate use of the term PMSC to describe these organizations undermines the legitimacy of genuine PMSCs and the progress made in regulating their activity and promoting responsible and accountable behavior. This is not unintentional. It gives QMOs an advantage in competing for business, since these non-standards compliant companies can operate at lower costs than legitimate PMSCs – and with less oversight and scrutiny. By accepting the use of the term PMSC to describe these QMOs, they assume a sense of moral equivalence with PMSCs. In this way QMOs benefit from much of the work done to improve the reputation of PMSCs while not emulating the practices that earned that reputation. This perceived equivalence may lead developing States and private sector actors needing PMSC services to use less expensive QMOs. This may drive legitimate PMSCs out of the market or lead them to abandon Montreux principles and assume the QMO business model. In the end, the negative aspects of QMOs will be undeniable and harm the reputation of both QMO clients and genuine PMSCs. The promotion of equivalence will de-legitimize PMSCs and make it more difficult for governments or the private sector to use them.
To counter the malign effects of QMOs and preserve the gains made in responsible and accountable use of PMSCs, major government users and providers of PMSC services must renew efforts to assert the State monopoly of violence. The work of formal inter-governmental organizations – such as the Organization for Security Cooperation in Europe and the UN working Group on Mercenaries, and less formal initiatives — such as the Montreux Document Forum, need to address the challenges of QMOs and separate them from the achievements of the Montreux Document, the International Code of Conduct, and international standards. Like prior successful efforts, this renewed effort must be State sponsored, as States legislate, regulate, and are responsible for enforcing the Law of Armed Conflict. Like achievements regarding PMSCs, this renewed effort also needs a multi-stakeholder component, incorporating the advice and counsel of the PMSC industry, human rights organizations, academics, and private sector purchasers of PMSC services.
Without this re-engagement there is a very real risk that the QMO model may prevail over the best efforts of the previous two iterations to maintain the State monopoly of violence.