The ethical legitimacy of military outsourcing

ROBERT PARR is currently a PhD Student with the Defence Studies Department of King’s College London.

Increased levels of uptake from the commercial security sector by national governments in the post-9/11 era have spawned a large body of academic research, the majority of which is centred around the connected questions of why this phenomenon has developed and the modalities by which it may be understood. A significant subset of this research is concerned with the ethical legitimacy of the security industry where it is contracted in support of national military power.

What is noticeable, is that this subset of extant research focuses almost exclusively upon the actions of private security contractors rather than the outcomes they are contracted to achieve. Whilst it is clearly of the utmost ethical importance that private security contractors providing services in support of national military power have their actions subject to critical analysis, it is my argument that the question of what they are being contracted to achieve has a broader utility in making judgments about whether their use is ethically justifiable in the first instance.

This is a question that can easily extend beyond the parochial interests of a single nation state. It is a question that has been analysed in some depth by a number of published authorities, but almost invariably in the somewhat narrow context of how such activities are undertaken rather than in the context of for what contracted outcome the private security actor is being engaged to deliver.

This delineation is important. Where the ethical legitimacy of physical actions undertaken by a commercial security contractor may be assessed against criteria such as international and domestic laws or the broadly accepted ethical and legal norms attached to the conduct of warfare, the ethical legitimacy of engaging him [or her] in the first instance is less clear. This raises a concern in that, if it is legitimate for the UK Government to engage the private security actor for the purpose of providing or enhancing military capacity, is it also legitimate for an unstable or maverick state to do the same? Or indeed, is it legitimate for non-state actors such as multinational corporations and even ideological groupings to engage with the private security sector for the provision of military services? If so, then it is a sector that requires a clearly defined ethical boundary if we are to conceptualise it in terms of its significance as a constituent actor in future structures of local, regional and global power.

At the strategic level, there is widespread agreement that it would be unethical for states to employ private companies to wage war on their behalf. This perception is based upon the hitherto accepted norm that sovereign states hold a monopoly of force, what has been termed the ‘bureaucratisation of violence’. This is a viewpoint that strongly reinforces the perception that soldiers are the moral agents of the state, and by extension accountable to both the state and to its citizens. In recent years, this soldier/citizen relationship has served as a crucial moral differentiation between state militaries and Private Security Companies (PSCs). It is commonly argued that the deployment of state militaries is subject to political and ultimately public scrutiny, whereas the engagement of PSCs attracts no such transparency. It is also claimed there is no ethically significant relationship between civilian contractors and the citizens of the state, whereas there generally exists a very strong relationship between the soldier of the state and its citizens. The simplistic conclusion is that PSCs and their staff only have weak moral obligations to their clients, and it is therefore unethical for the state to engage with them.

Notwithstanding this well debated and increasingly analysed differentiation between state militaries and PSCs, it is a reality that private security capacity has become a component element of national military power for many state actors. This is evidenced across the literature, and is doctrinally acknowledged in the UK under its emerging ‘Whole Force’ defence strategy. It follows that a clear ethical boundary for contracting private security outcomes needs to be identified in order to establish moral legitimacy when utilising the industry in support of national military power.

The principal barrier to achieving consensus on the ethical legitimacy of utilising the private security actor in this context, is that a strong antimercenary norm exists at the international level. This norm is apparently grounded in moral objections to mercenarism. However, a recent article by Dr. Hin-Yan Liu (University of Copenhagen) and Dr. Christopher Kinsey (King’s College London) argues that moral objections to mercenarism are not as strong as many commentators and critics of the industry would suggest.

Whilst accepting that the pre-9/11 decline in mercenary activity was underpinned by a degree of moral reasoning influenced by the maverick actions of certain private security actors in Africa during the 1960’s and 1970’s, Dr. Liu and Dr. Kinsey contend that objections to the mercenary are more accurately rooted in norms surrounding concepts of state neutrality and the right of peoples to self-determination. They do not discount moral objections to mercenarism completely, but they do powerfully assert that self-determination and the narrow interests of states during periods of instability are dominant. Their central contention is that the antimercenary norm, however it is grounded, becomes marginalised when national interests diverge from its tenets. This has been strongly evidenced in recent years through the exponential use of PSCs in Afghanistan, Iraq and elsewhere by the UK, the USA and others.

This argument is nuanced, yet powerful. In an era where the uptake of private security capacity provides vital support to national military power, viewing the security industry askance in its entirety does little to advance debate on how we might better utilise its advantages whilst navigating its dangers. Rationalising the antimercenary norm is a vital step in effectively analysing how the private security sector impacts modern-day defence and security dynamics, and in moving towards a universally acceptable form of ethical boundary-setting. In this sense, establishing whether the contracting of outcomes from the private security sector in support of national military power can have normative ethical legitimacy becomes a research imperative.

Utilising Frost’s constitutive theories of ethics in international relations (2002) and human rights (1996) as an overarching theoretical framework can assist in taking this forward. This is because constitutive theory allows contracted outcomes from the private security sector to be situated and analysed in a way that has the potential to promote rational discourse when addressing the question at hand. It also provides a foundational model of analysis for studying examples of private security contracting where the ethical legitimacy of such tasks is particularly difficult to discern.

Situating discourse within the arenas of global civil society and the intra-practice society of sovereign states, bounded by the rights that accrue to civilians, citizens and states as actors within these societies, makes it possible to rationalise the antimercenary norm and thus facilitate progress towards defining ethical criteria that legitimise (and perhaps more importantly, limit) uptake of capacity from the private security sector in support of national military power.

It is positioned that use of PSCs can be defined as ethically legitimate where the capacity they provide is solely utilised for specified purposes that claim normative legitimacy within the intra-practice society of modern sovereign states, and where contracted outcomes neither require nor imply the compromise of certain rights that extend from this global arena of human interaction.

Image: The author.

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