PSC and R2P in Libya

You may have noticed that ever since the U.S., Great Britain, France, and other nations started intervening in the Libyan civil war in support of the rebels there have been more than a few people suggesting this is a tailor made opportunity for private security contractors to show their utility. There have been several articles in the past week or so advocating that Britain hire PSC to help the rebels.

After all, they could be on the side of the good guys against a man, Muammar Gaddafi, that just about everyone agrees is a wacky dictator, and help save face for the states who have been looking to reduced their involvement in Libya almost since the moment they declared that they had an responsibility to protect (R2P in diplospeak) innocent Libyan civilians.

But before everyone starts saying brilliant and issuing contracts we might take a moment to look at an article by Dr. James Pattison, a Lecturer in Politics at the University of Manchester. His research interests concern the moral issues raised when using military force abroad, including humanitarian intervention, the responsibility to protect, and the increased use of private military companies. His book, Humanitarian Intervention and the Responsibility to Protect: Who Should Intervene?, was published by Oxford University Press in 2010.

The article is "Outsourcing The Responsibility to Protect Humanitarian Intervention and Private Military and Security Companies," which was published last month in International Theory journal.

Dr. Pattison attempts to answer the question, should PMSCs be employed to help fulfill the responsibility to protect (and particularly humanitarian intervention)? His conclusion is yes, and no.

He writes:

Some object to private companies playing any role in humanitarian intervention (e.g., Avant 2004; Brayton 2002). Others admit that private companies are a potentially legitimate way of bolstering the capacity to undertake humanitarian intervention, but argue that they should be used only if there is first established a strong system of regulation. In what follows, I challenge both positions. I argue that there is a case for outsourcing intervention to PMSCs in certain situations, even without effective regulation. In doing so, I examine four central objections to employing private companies to undertake humanitarian intervention: (i) that this proposal is unrealistic; (ii) that PMSCs lack the right motives; (iii) that employing PMSCs undermines democratic control; and (iv) that PMSCs are not legally accountable and, as a result, their employees may violate principles of just conduct in war (jus in bello). Rather than challenging the validity of the last three of these concerns (I will reject the first objection about feasibility), I dispute the weight that we should give to them. The importance of the concerns highlighted by these objections, I claim, can be outweighed when two conditions are met (namely, when a PMSC (1) is responding to a serious humanitarian crisis and (2) is likely to be successful). When these two conditions are met, it may be morally acceptable to use PMSCs.

Before getting to his central argument it's worth looking at some clarifications he spells out early on.

First, it is important to reiterate that humanitarian intervention is only one part of the responsibility to protect (the 'responsibility to react'). According to the ICISS (2001a), the responsibility to protect also encompasses the 'responsibility to prevent' humanitarian crises and the 'responsibility to rebuild' afterwards. In fact, humanitarian intervention may not be the most important part of the responsibility to protect.
Second, I will not claim that PMSCs should replace other agents of intervention (such as the UN, regional organisations, or states). My argument instead is the more limited claim that private companies are a potentially legitimate way of supplementing these agents. I take this position because the objections that I consider to using PMSCs for intervention have some force - they present significant reasons to oppose using private force as a substitute for public force for humanitarian intervention. Although I will argue that the force of these reasons can, on occasion, be outweighed by the benefits of using PMSCs for humanitarian intervention, I will also claim that such occasions are likely to be rare and, moreover, in many cases public force may be more effective. As such, a complete outsourcing of humanitarian intervention would be morally problematic.

To understand what the possible objections to PSC use are it is necessary to understand the roles they might play. Essentially they are three:

First would be to undertake humanitarian intervention by itself. This would involve another agent funding intervention by the company. The second role would be to provide troops to bolster or to fill gaps in another agent's intervention. The third role would not involve direct combat operations, but instead support services to assist another agent's intervention. A PMSC could provide logistics, training, intelligence, lift-capacity, and other support services to bolster the capability of a state, regional organization, or the UN.

It is the last role that most commentators are talking about when they talk about using PSC in Libya.

According to Pattison:

An immediate objection to this proposal is that there are considerable practical obstacles to outsourcing the responsibility to protect to PMSCs. For instance, who is going to pay PMSCs to undertake humanitarian intervention? States have already demonstrated their unwillingness to get involved in humanitarian crises by their reluctance to commit their own troops. This unwillingness may extend to an aversion to pay others to intervene. Indeed, a number of states oppose the use of these companies because they are seen as a tool of Western governments. In this context, David Shearer argues that "[d]eveloping countries have enough difficulty swallowing the concept of human security that in their eyes weakens their sovereignty by allowing outside forces to enter states uninvited to protect civilians, without contemplating a privatised military doing the job". Moreover, PMSCs may themselves be reluctant to take on the first and second roles, which involve combat operations. Indeed, it is questionable whether PMSCs have the capacity to take on a major combat role. The objection, then, is that this proposal is utopian: it is extremely unlikely to be achieved. Normative theorising about outsourcing the responsibility to protect is therefore futile and takes us away from serious discussions about realistic improvements that could be made to the agents and mechanisms of humanitarian intervention.

Pattison, however, thinks these practical objections are largely overblown. He notes that "tackling serious humanitarian crises can be in a state's national interest and therefore a state may be willing to fund intervention by a PMSC. On a wider, ideational definition of national self-interest, a state's self-interest is determined not only by its material interests, such as economic gain, but also by its identities, principles, and shared values, such as the promotion of democracy, freedom, and human rights. As such, humanitarian intervention can be in the national interest since it promotes the values endorsed by the state (i.e., respect for human rights) on the world stage. Even on a narrow notion of self-interest, humanitarian intervention can be in a state's national interest by, for instance, preventing large refugee flows and avoiding a failing state from becoming a breeding ground for international terrorism and piracy."

But at the level of normative objections Pattison thinks criticisms are more valid.

First is that people should do the right things for the right reasons. More specifically, the claim is this: self-enrichment constitutes an inappropriate motive for conducting war in defense of basic human rights.

Second is that the argument that self-interest is an inappropriate motive to undertake humanitarian intervention is intuitively plausible. This argument is based on the Kantian notion that individuals should be motivated by the right sort of reasons for their actions to have moral worth. For instance, if the reason for an individual's donation to charity is a tax break rather than wanting to help those that are more disadvantaged, that individual's action has less moral worth. Accordingly, if we undertake humanitarian intervention in order to benefit ourselves, it appears to be less morally valuable. It follows that intervention by a PMSC is morally problematic because both the employees of the PMSC -- the private contractors -- and those in charge of the PMSC -- for instance, its CEO, board, or shareholders -- may not possess a humanitarian motivation.

A further objection is that the possible financial motivations of a PMSC and its personnel are particularly egregious. The problem is not the financial motivation in itself - possessing a remunerative motive in other contexts is not necessarily morally problematic. Rather, the problem is possessing a financial motivation in the context of using military force. The use of military force inflicts suffering on individuals. It seems wrong then that individuals are motivated by financial gain to such an extent that they are willing to inflict suffering (or assist others to inflict suffering). We tend to believe instead that there are limits to the actions that an individual can legitimately undertake for financial gain.

Supporters of PSC use will argue, as Pattison notes, that it is not the private contractors or companies' motives that matter, but the motives of the intervener as a whole (e.g., the employing state), which are determined by the ruler or ruling elite. Indeed, the focus of jus ad bellum is traditionally on leaders rather than soldiers because leaders are responsible for decision-making. Pattison's response is:

In fact, there is reason for giving private contractors' motives greater weight than regular soldiers. Private . contractors' motives are relevant to the decision to take on a particular intervention - their motives will determine whether they agree to a contract (the same point applies to PMSC directors). By contrast, regular soldiers' motives are less relevant to whether they undertake an operation; they are under the authority of the armed forces and, as such, are obliged to obey their leaders' decision to intervene. The motives of private contractors and their companies may also have a greater impact on the ground - on what actually goes on during the intervention - than the motives of state leaders.

The third objection to employing PMSCs to discharge the responsibility to protect concerns a state's control over its armed forces. By employing PMSCs to undertake humanitarian intervention, the forces that the state utilizes are no longer its forces, but the forces of a private company. When it is a democratic state employing their services, this reduces the degree of democratic control over the intervention.

The fourth objection to hiring PMSCs relates to their lack of effective legal accountability. It is just a fact that despite many national regulations and codes of conduct, there are no specific international legal instruments concerning PMSCs. The ones that do exist prohibit the use of mercenaries, which do not clearly apply to PSC. The problem is that it leads to impunity. Private contractors can violate the principles of jus in bello without fear of reprimand, most notably the principles of noncombatant immunity (by harming civilians) and proportionality (by using excessive force).

The industry counterargument to this criticism is that when playing a minor, supporting role for another intervener, concerns over the violation jus in bello may dissipate as private contractors will not be engaged in combat operations.

But Pattison writes that "the need to retain a positive reputation, however, does not act as a strong barrier to the violation of principles of jus in bello by private contractors. The desire for a positive image may simply mean that PMSCs cover-up, rather than report, violations of human rights by their employees."

Of these four criticisms, Pattison thinks the first can be dismissed but the remaining three have to be taken seriously. But in certain circumstances even those objections are not that significant.

To do so Pattison makes a largely consequentialist argument He presents what he calls the 'Moderate Instrumentalist Approach' to humanitarian intervention. The key assertion of this approach is that an intervener's effectiveness is a primary, and sometimes sufficient, determinant of its justifiability.

I am simplifying his argument here for the sake of space but the effectiveness of a PMSC undertaking or assisting humanitarian intervention should be measured by its consequences for individuals' enjoyment of human rights, and especially their basic human rights.

It is only in certain circumstances, however, that a PMSC's effectiveness can be sufficient for its justifiability. In particular, this happens only when two conditions are met. First, the PMSC needs to be responding (or assisting in the response) to a humanitarian crisis that is extremely serious. That is to say, there must be scope for the PMSC to achieve a substantial magnitude of success by improving the enjoyment of basic human rights of a large number of individuals, such as in cases of mass killing or genocide. Second, the PMSC needs to have a high probability of being successful in its role. Employing the PMSC should be expected to lead to a more effective tackling of the humanitarian crisis than would have occurred with intervention solely by public authorities or no intervention whatsoever. Together, these two conditions require a PMSC to have a high probability of achieving a sizeable improvement in the serious humanitarian crisis, either by intervening largely by itself or by assisting others in their intervention. It needs to be expected to make a significant, positive impact on the enjoyment of basic human rights for its intervention to be justified, all things considered. In short, the PMSC needs to be highly effective. The good achieved by such an intervention will outweigh possible problems of motivation, democratic accountability, and the violation of the principles of jus in bello.

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