by Ulrich Petersohn

The increasing use of private military and security companies in armed conflicts is viewed with concern by many observers. In order to prevent the excessive and unregulated use of force by commercial armed actors, an international regime has been created to regulate them. But how dangerous are these companies really, and how promising are the existing control mechanisms?

The enormous shrinkage of the armed forces during the 1990s and the simultaneous increase in operational tempo are two important factors that have led to the boom in private military and security companies (PMSF). In the meantime, an entire market for armed services in conflict zones has been established. This includes, for example, convoy, camp and personal protection. These "defensive" services are considered legitimate by most governments and international organizations. Nevertheless, many view this development with concern. One of the main objections raised by skeptics is based on the assumed aggressiveness of such companies and the associated risk of escalating violence. Proponents, on the other hand, point to the existing regulation of PMSF and the strict rules on the defensive use of force. This article will examine the viability of both arguments.

Aggressive cowboys? Empirical findings

PMSF are often portrayed as wild 'cowboys' who are not very squeamish and act with excessive aggression. This image is largely shaped by a few - undeniably terrible - incidents in Iraq and Afghanistan. There is no doubt that armed service providers have the potential to cause enormous destruction. However, it is not possible to draw conclusions about the behaviour of the PMSF as a whole from unsystematized cases. Scientific studies have shown that PMSF are by no means more aggressive than regular armed forces. This is evident, for example, from data on so-called 'friendly fire incidents', i.e. incidents in which allied forces accidentally fire on each other, in Iraq. It shows that PMSF were 'only' involved in 68 out of 1269 of these incidents between 2004 and 2010. In total, these firefights resulted in 781 casualties, but 'only' 55 people were killed in battles in which PMSF were involved. When the number of firefights, casualties and contingent sizes of the PMSF are compared with those of the US and Iraqi armed forces, private companies fare very well: the casualty rate per incident is generally lower than that of the Iraqi and US military. It also shows that the image of the loose trigger finger in the case of PMSF is exaggerated. The data shows that PMSF initiated the exchange of fire in 50% (34) of cases, and in 35% (24) of cases the companies returned fire after coming under fire (in 15% (10) of cases it is not possible to categorize). If a distinction is made between 'western' and local companies, a further pattern emerges. Although thinner data calls for caution here, 16 of the 68 incidents can be clearly attributed to international and 27 to local Iraqi companies. In the 16 cases involving international companies, three people were killed, while 14 people were killed by local companies.[i] The finding that local PMSF are more likely to contribute to the escalation of violence is also supported in Afghanistan. Here, PMSF are often nothing more than the militias of former warlords who now operate as local security companies in a new guise. However, the business model here is not only based on the provision of security services, but also on a targeted escalation of violence by the companies themselves, with the aim of making these services necessary in the first place[ii].

In summary, the data does not support the assertion that PMSF are generally aggressive 'cowboys' who escalate violence. Rather, there is a dichotomy in the market: on the one hand, there are Western PMSF, which tend to be characterized by a restrictive use of force. On the other hand, there are local PMSF, which often have an aggressive attitude.

International Code of Conduct: Effective regulation?

However, it cannot be overlooked that excesses and the excessive use of force by Western PMSF can of course also occur. The call for regulation is therefore justified. Internationally, the 'International Code of Conduct for Private Security Service Providers' (ICoC), which came into force in 2010, is one of the most important regulatory frameworks for PMSF. It was developed in cooperation between governments, civilian organizations and the security industry in Geneva and contains extensive regulations on management, recruitment, conduct during operations and other practices. However, it is problematic that the ICoC, as an international voluntary commitment regime, has so far only been equipped with a weak supervisory mechanism and no sanction mechanism whatsoever. This often leads observers to doubt the effectiveness of this regime.

However, research shows that the regulation of PMSF by the ICoC is effective even without a sanction mechanism, at least for some of the companies. This can be explained by two main factors: Firstly, norms as instructions for action are directed at actors with certain identities. Their success is based on an intrinsic motivation that causes the actor to follow a norm even without external incentives. The norms of the ICoC are aimed, for example, at legal corporate structures, respect for human rights and a restrictive use of force. Market providers that reflect these values in their self-image are very likely to behave in accordance with the standards. Secondly, the customer can of course set an external incentive to encourage companies to comply with the ICoC by specifying the performance of the service in accordance with these standards in the contract. Companies that do not adhere to the ICoC would lose out on lucrative contracts.

So there is not only reason to be skeptical about the ICoC. However, its effectiveness is limited. The current construction of the regulations requires a certain identity of the companies and a certain demand from their customers in order to be effective. Both factors are firstly not universal and secondly highly variable. Firms may develop new identities; customers may express different preferences. For example, a market provider may decide to offer not only defensive but also offensive services. In short, not every company in the market has an identity that makes compliance with ICoC standards likely. The same applies to market demand from customers. It has already been shown that governments, especially in weak states, do not necessarily prioritize the protection of human rights and the restrictive use of force. They are much more interested in effective and robust military services, for example to regain lost territory.

Conclusion and trends

It is clear that the ICoC has less of a regulating effect and more of a segmenting effect. Companies that already have a legal, restrictive-defensive identity have signed up to the ICoC regime. These are not exclusively, but mainly Western companies that are organized according to Western legal standards and whose personnel have largely been socialized within democratic armed forces or police forces. The introduction of the ICoC has hardly had any regulatory effect on these companies, as they were already acting with restraint in accordance with their values. In the rare cases of excessive use of force by these companies, the code also has no regulatory effect due to its weak supervisory structure.

Conversely, the ICoC has no effect on companies that do not meet Western standards and recruit staff from a different background. Former Afghan 'warlords' have founded companies, as have former Iraqi officers or members of autocratic special units. These companies of all people cannot be expected to comply with the rules of the ICoC and its voluntary commitment. They will not join the regime or be accepted by it.

The ICoC thus perpetuates an already existing segmentation of the market. In Iraq and Afghanistan, the fault line has so far run roughly along the division between Western and local companies. The impact of the local PMSF certainly had the potential to fuel the violent dynamics of the conflict, but remained geographically limited. However, this line is currently shifting. Beyond internationally operating, Western-defensive PMSF, internationally operating, often non-Western, offensive providers are increasingly emerging. For example, the Frontier Service Group, a logistics and aviation company based in Hong Kong, recently had two civilian aircraft converted in order to equip them for a combat mission in Sudan. Also worthy of mention here are the Russian private companies that carried out combat operations in Syria and the South African providers that are supporting the Nigerian government in its fight against Boko Haram.

This shows that both skeptics and supporters of the use of private military and security companies can see their arguments strengthened on the one hand and weakened on the other. The skeptics' concerns about aggressive behavior and an escalation of violence were largely unfounded with regard to Western companies. With regard to local providers and the development of the segment of internationally active combat providers, however, it should be taken seriously. Proponents, on the other hand, can point to the fact that a large part of the industry operates restrictively, in line with ICoC standards. However, this is due less to the regulatory effect of the code than to the already existing identity of these companies. Furthermore, this argument only applies to a limited number of market players, namely Western providers.

Looking ahead to future regulatory efforts, it should be noted that universal regulation with effective supervisory and sanction mechanisms for the entire international PMSF market is unrealistic. The difficulty lies less in drawing up rules than in sanctioning and monitoring compliance with them. There are essentially only two sanction-based regulatory regimes that have any prospect of success. One is domestic regulation. However, PMSCs are used in conflict regions where the host state can hardly guarantee regulation and supervision. Domestic regulation is therefore only an alternative in sufficiently strong states. On the other hand, troops from strong states can provide at least basic supervision in an operational area in which PMSFs also operate. Even though there are still enormous problems in the areas of responsibility, contract design and, in particular, a continuous supervisory function. Experience from Iraq has shown that measures such as cameras in PMSF vehicles or reporting obligations can ensure moderate control.[iii] Internationally, the ICoC is the only promising instrument, despite a certain lack of teeth. The ICoC does not cover the entire transnational PMSF market, nor does it develop its effect through traditional monitoring and sanction mechanisms. Its effect is based on the formalization of rules and the resulting segmentation of the market. On the one hand, there are companies that commit themselves and thereby strengthen their existing 'legal-defensive' identity. On the other side are PMSF with other identities that do not join. Furthermore, the regime has a long-term socializing effect on newly founded companies that regard this standard as the applicable norm from the outset. Ultimately, the ICoC allows customers to differentiate between regulated and unregulated companies and adjust their demand accordingly.

SOURCES

[i] Petersohn, Ulrich. (2013) The Effectiveness of Contracted Coalitions: Private Security Contractors in Iraq. Armed Forces & Society 39:467-88.

[ii] ---. (2014) The Social Strcuture of the Market for Force. Cooperation and Conflict online-first.

[iii] ---. (2011) The Other Side of the Coin. Private Security Contractors and Counterinsurgency Operations. Studies of Conflict and Terrorism 34:782-801.