Comparing privateering and private military companies

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Comparing Privateering and Private

Military Companies

Bachelor project

Name: Derk Hortensius

Studentnumber: S1704125

Bachelor Projectnumber: Group 10 Version: Final Version

Instructor: Dr. Claire Vergerio

Second reader: Rebekah Tromble

Date: 18-06-2018

ID: 6443BP10

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Index

Chapter one: Accountability mechanisms for privateering ... 11

The practice of privateering ... 11

Laws and Regulations ... 12

Peers and Reputation ... 14

Chapter two: Accountability mechanisms for Private Military Companies ... 17

The practice of Private Military Companies ... 17

Laws and Regulations ... 18

Peers and Reputation ... 21

Chapter three: Comparing accountability mechanisms ... 23

Mechanisms ... 23

The similarities ... 23

The differences ... 24

Conclusion ... 26

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Introduction

State-authorized non-state violence played a big role in history. Around the thirteenth century privateering was invented and for the first time European rulers started to authorize this form of non-state violence. “Largescale private armies dominated Europe during the fourteenth and fifteenth centuries. Mercenary armies were the norm for eighteenth-century European states; naval mercenaries were common through the eighteenth century. Mercantile companies flourished from the sixteenth to the nineteenth century“ (Thomson, 1994, p21). These marketized and internationalized practices of violence gave the European rulers seemingly lots of benefits, like lower costs for their violent behavior. However, around the nineteenth century, states started to change their behavior on the use of authorizing violence due to certain negative effects of private violence. In addition, states were more and more claiming the monopoly on violence and started to delegitimize the state-authorized non-state violence. This eventually led to the abolishment of this sort of violence, like privateering.

The last two decades we have witnessed the rapid proliferation of private military and security companies in armed conflicts around the world. According to data compiled by the Congressional Research Service (2017), private contractors outnumber U.S. troops by a 3-to-1 margin since 2011. With these private military companies (PMCs) participating in violent conflicts, the state is increasingly giving its monopoly on violence away to private actors. Therefore conceptions as the state holding the monopoly on violence and, as the legitimate user of violence are being contested. This fits into the debate on the relationship between public and private violence. Current thinking about the use of state-authorized non-state violence is probably changing into thinking before the nineteenth century and this creates a debate over the accountability of violent practices by state-authorized non-state actors.

Moreover, to what extent do today’s accountability mechanisms for state-authorized non-state violence differ from accountability mechanisms in the nineteenth century?

To answer this question this study will first examine the history of- and today’s state-authorized non-state violence, to clarify why states abolished the use of this kind of violence and eventually started using it again. Especially literature on (the history of) privateering and today’s PMCs will be studied. Second, after the literature review, the core concepts in this study will be defined to help to place the puzzle into the broader debate about the relationship between public and private violence. This debate is about the legitimacy and sovereignty on

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the use of violence and will be further outlined. By placing the puzzle into this broader context a better understanding of the puzzle in international relations can be achieved.

Literature review

The overall goal of the literature review is to get as close to answering my research question by looking at existing literature about privateering and PMCs. This is done by looking at what private and public violence makes distinct and second, how this changed thinking about the use of state-authorized non-state violence. Next the control on and responsibility for

privateering and PMCs will be examined and how this relates to the accountability mechanisms.

Thomson (1994) created an eightfold typology of the relationship between states, markets and violence. She points out that privateers are non-state actors who are licensed by the state. Before the nineteenth century boundaries were unclear; and boundaries between state and non-state realms of authority, between the political and economic, and between the domestic and international realms were blurred or did not exist (Thomson, 1994, p.19). Because states themselves authorized non-state violence, it was difficult to determine which acts of non-state violence were state-authorized or for a private and independent cause. Therefore state rulers made use of the plausible deniability approach to get rid of their accountability by denying any responsibility for wrongful acts by non-state actors.

Moreover, states increasingly felt the unintended consequences of private violence. Privateers turned to piracy when war was over and mercenaries tended to desert. Therefore states started to change the institution of sovereignty to delegitimize non-state violence. Moreover, Thomson argues that the eradication of state-authorized non-state violent practices, was the logical outcome of the American and French revolutions which led to the rise of republican governments and changed the nature of sovereignty. This also led to a changed rationale of the rulers about the use of state-authorized non-state violence.

The removal of sovereign authority from the monarch, and the investment in

individual citizens meant that state became responsible for all acts of international violence under their sovereign jurisdiction (Thomson, 1994). Moreover, states started to held each other accountable for international actions of individuals under their sovereign jurisdictions.

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On top of that, it was no longer acceptable to claim that an individual was pursuing his private interests and that the state could not be held responsible for that conduct.

Leira and DeCarvahlo(2010) go more into detail over the control of state-authorized non-state violence. Their focus is on French privateering. From 1681 states tried to increase their control over privateers by creating regulations, because the state was losing its grip over privateering during peacetime. “However, with gradually expanding control, it was possible to make new specified regulations for consular handling of prizes in 1779” (Leira and DeCarvahlo, 2010, p.81). These consuls examined if privateers had obtained their prizes by legal means, otherwise punishments followed. In French privateering some of the ships were owned by the state and loaned to privateers. Also privateering crews consisted of naval personnel, therefore these consuls were appointed to protect the state’s interests, because privateers were in this sense subjects of the state. These consuls were active until the abolition of privateering with the declaration of Paris in 1856. American privateers were also controlled by the state, according to Tabarrok (2007). In addition, these privateers were given

instructions on how to act towards neutrals. These instructions were enforced by bonds.“The performance bond ensured that privateers would follow the rules Congress laid down and the law of nations or face a potential penalty. A typical privateer outfitted for approximately $40,000”. (Tabarrok, 2007, p.570)

Also crewmen were given lots of incentives to follow the rules, like a bonus for the first who spots a prize or fines for misconduct against prisoners. However, privateering could not be continued during peacetimes. Therefore privateers turned to piracy and states tried to abolish privateering, which eventually succeeded with the Declaration of Paris in 1856.

Lemnitzer (2014) adds that with this declaration the ultimate responsibility for actions of privateers lay with the governments and every government would be held responsible for illegal acts committed by privateers whom they had licensed. This refers to the changing rationale about state-authorized non-state violence.

Until states started to delegitimize and abolish the use of privateering their focus was on the regulation of privateering. However, today there is a bit more focus on the

accountability of PMCs. Tonkin (2011) studies the question of state responsibility for

misconduct of PMCs through a three-party framework: the hiring state, the host State and the home State. Her approach is to try to find relevant doctrines of international law, to explain their characteristics and illustrate the applicability of these legal principles. She states that

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through articles 5 and 8 of the International Law Commission Articles, a large portion of PMCs (mis)conduct can be attributed to the hiring state. She underpins this by arguing that PMCs can be consumed as a part of the hiring state’s armed forces. Moreover, the host state has obligations under International Humanitarian Law (IHL) and International Human Rights Law (IHRL). The host state has a legal responsibility, although in most cases it lacks the capacity, to regulate and control the PMCs it hosts in its jurisdiction. Finally, the home state is in general not responsible for violations of PMCs, although it must promote respect for IHL and try to refrain interference by its own agents and prevent or punish private actors from doing so from their territory. Tonkin (2011) concludes that state responsibility is not sufficient to address the accountability issues according to PMCs, because it lacks the enforcement mechanisms and it does not address accountability for contractors or the PMCs.

In addition to this conclusion, Hedahl (2012) argues that current accountability

mechanisms for PMCs are ‘woefully inadequate’. To get members of PMCs accountable they must become part of or, at least, directly liable to the legitimate authorities military or police structures (Hedahl, 2012). In addition, to hold individual members of PMCs criminally responsible, there must be a clear and precise delineation of responsibility among public officials.

In sum, it was difficult to determine if violence was private or public and this led to unintended consequences which in their turn led to the abolition of state-authorized non-state violence, because of the lack of control. However, on the one hand the ultimate responsibility was directed to states due to the Declaration of Paris, but on the other hand state responsibility is not sufficient to address accountability issues according to PMCs. Therefore a closer

7 Definitions

To get a better understanding of the context and to place the research into the broader debate about the relationship between public and private violence, some of the core concepts used in this research will be defined. The research question contains two core concepts, ‘accountability mechanisms’ and ‘state-authorized non-state violence’. First, to define accountability mechanisms a definition of accountability is needed. “Accountability is by definition a relational concept. At the most basic level, an entity is responsible for some act or failure to act in ways that are consistent with certain accepted standards of behavior, as well as to someone or some institutional entity” (Andreopoulos & Brandle, 2012, p.145).

Moreover, accountability is also the right of an actor to sanction others if they fail or cannot uphold these accepted standers of behavior. Andreopoulos & Brandle (2012), distinguish three accountability mechanisms. First, legal accountability refers to the requirement that that the relevant actors/entities abide by formal rules and that these rules constitute the frame of reference for their actions before courts and related judicial entities. Second, peer

accountability refers to mutual evaluation of actors by their counterparts. Finally, reputational accountability combines aspects of both legal- and peer accountability.

The second concept in the research question is ‘state-authorized non-state violence’ and refers to the practice of state rulers, who use their sovereign powers to authorize private actors to legitimately use violence. Privateering is one of the forms of state-authorized non-state violence used in history. “Privateers were vessels owned and manned by private persons, but furnished with the authority of their Government to carry on hostilities; they were used to increase the naval force of a State by causing vessels to be equipped from private cupidity” (Grant & Barker, 2009). PMCs are one of today’s forms of state-authorized non-state

violence. There PMCs are defined as: “independent corporations that offers military services to national governments, international organizations, and substate actors. Private military companies (PMCs) constitute an important and deeply controversial element of the privatized military industry. PMCs specialize in providing combat and protection forces” (Bell, 2018).

8 Conceptual framework

The distinction between public and private violence is all but natural, nor is this a neutral or purely technical division, as Williams (2010) point out. Due to the vague distinction, the conceptual framework will clarify the problem why it is hard to make a clear distinction of the ‘grand dichotomy’ and gives a better understanding of the overarching issues that come with assigning accountability and responsibility for certain conduct.

Williams (2010) argues that in the security field, the relationship between public and private is intimately connected to the symbolic relationship between security and the state. “At the most basic level, the very origins of the modern (and later liberal-democratic) state were defined by its opposition to the notion of ‘private’ security. Security was not to be decided on or provided by private individuals” (Williams, 2010, p.625). This notion of the modern state finds its roots in the period when states started to delegitimize and abolish the use private violence. To get a better understanding of the ‘grand dichotomy’ between public and private violence, the conceptual framework goes more into the concepts on which this distinction is based.

First, according to Tilly’s (1990) theory of the formation of the modern state, ‘war made the state, and the state made war.’ How is the state defined? Weber defines the state as an entity based on territoriality, violence and legitimacy. The state has the right to claim certain territory and other states have to respect these borders. Within these borders the state “successfully upholds a claim to the monopoly of the legitimate use of physical force in the enforcement of its order” (Weber, 1964). This notion of the state defines it as an actors who claims the authority within a certain territory to coerce non-state actors. The use of violence is the ultimate means of coercion, while the states’ deployment of coercion is almost always seen as legitimate. The deployment of coercion by non-state actors such as, rebel groups or separatist movements are not viewed as legitimate. This concept of legitimacy is based on the probability that other authorities will act to confirm the decisions of a given authority (Tilly, 1990), especially other states, or statesman as a group. Moreover, the state monopolized the right to declare itself as the primary ‘public’ arena to defend the general interest and in exchange to the obedience of private actors, the state provides a way of life in which private actors may pursuit their private interest (Owen, 2008, p.980).

Second, the private sphere is based on the liberty and private autonomy of individuals to accumulated wealth and to own private property other than to share it with other

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individuals. This pursuit for private interests is also present in the security domain. In international relations a wide variety of private actors used violence as a mean to achieve certain goals, also authorized by the state.In this sense these private actors are better defined as non-state actors, but these private actors also pursuit public goals due to the

state-authorization. This creates the problem to what extent a private actor is private and therefore who is accountable.

In addition, Thomson (1994) raises questions concerning how much control the state exerts over what aspects of violence. She points out three analytically distinct dimensions of control: decision-making authority, allocation, and ownership. Decision-making authority implies the authority to decide the ends to which violence is deployed, this authority can be state or non-state; while the allocation of the coercive capabilities can be done authoritatively or through the market. Furthermore, the ownership over the means of violence can also be divided between state and non-state.

In this model privateering and PMCs are a ‘state-authorized decision-making but, non-state-owned form of violence’. These two forms of private violence are only private in the means of violence, the people who use violence. However, the ends of violence are

determined by the state and are therefore public. For this reason it is hard to point out if privateers and PMCs are private or public; and it is hard to determine the accountability and responsibility for their conduct. Moreover, does the accountability on their use of violence differ? To get an answer on this question and the research question the next paragraph will elaborate on the research design and give a brief outline of the remaining part of this thesis.

Research Design

As the existing literature on state-authorized non-state violence focuses on the regulation of this kind of violence, this study will focus on the accountability mechanisms. This paragraph covers the research design and the chosen methodology to answer the research question: to what extent do today’s accountability mechanisms for state-authorized non-state violence differ from accountability mechanisms in the nineteenth century? Especially the

accountability mechanisms for privateers and states in the nineteenth century, before the abolition of privateering in 1856, and after this abolition until the end of the nineteenth

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to privateering and can therefore be seen as a benchmark date in the history of

state-authorized non-state violence. These accountability mechanisms will be compared with the accountability mechanisms for PMCs and states ranging from the 1990s until today. The last two decades we saw a rapid proliferation of the use of PMCs in the world, which means that state-authorized non-state violence is an important topic in today’s international relations.

The remaining part of this thesis will be divided into three chapters and the following research design will be applied. In the first chapter a brief historical context on privateering will be given and the different accountability mechanisms given by Adreopoulos and Brandle (2012) are used to get a clear view on the accountability mechanisms in the nineteenth

century. These accountability mechanisms will be divided into legal, peer and reputational accountability mechanisms. By the use of this division a good comparison can be made to determine on which aspect these historical and today’s mechanism differ.

First, the legal accountability mechanisms in the nineteenth century will be researched. These mechanisms include the legal framework on the use privateering, like domestic laws and international treaties. Second, the peer and public reputational accountability mechanisms until the end of the nineteenth century will be studied. These will focus on the reciprocity of states on their use of privateering, by looking at states’ behavior.

The second chapter is also structured like the first but will focus on these mechanisms from 1990s until today on PMCs. Eventually the final chapter will compare all three types of mechanisms of both periods with each other to determine their similarities and differences; to answer the research question and eventually conclude how the accountability mechanisms on privateering differ from mechanisms on PMCs today and if current thinking of

state-authorized non-state violence has changed. However, due to the limited timespan of eight weeks, the availability and my access to primary sources; the focus of this project is for the main part on secondary sources.

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Chapter one: Accountability mechanisms for privateering

This chapter focuses on the practice and accountability mechanisms of privateering. First the way in which privateering was organized will be explained. Next the close relation between privateering and piracy, which formed the basis of the legal mechanisms to control privateers, will be discussed. And finally, the mechanisms of privateering which affected diplomatic, trade and reputational relations between states will be explained.

State-authorized non-state violence served the interests of the states very well for several centuries. We might think the global organization of violence was mainly a state matter, but as Thomson (1994, p.3) explains: The contemporary organization of global violence is neither timeless nor natural, it is distinctively modern and until 1900, global violence was democratized, marketized, and internationalized. Nonstate violence dominated the international system. Acts of privateering began in the thirteenth century and ended in 1856 with the Declaration of Paris, which abolished privateering (Lemnitzer, 2014). In international law the term privateer is applied to a privately owned armed vessel whose owners are commissioned by a hostile nation to carry naval warfare. States had lower costs and state-authorized non-state violence proved to be highly effective. Privateers dominated naval warfare and mercantile companies established an European economic and political presence outside Europe (Thomson, 1994, p.41).

Privateering was a well institutionalized business. Letters of marque and reprisal were granted to merchants whose property had been stolen. They could apply to their rulers for a permit to take limited action for the purpose of restitution, not revenge, against specific agents (Tabarrok, 2007). These commission or warrants in this sense made certain acts of piracy legal. During peacetime a private cause of action was required, but in wartime sovereigns issued letters of marque and reprisal against any enemy ship, because “whenever a war broke out each party always claimed to be the party aggrieved, and when it justified its acts of hostility at all, it did so by connecting them in some way with the notion of reprisals” (Stark, 1897, p.54).

According to Tabarrok (2007), privateering worked only because it was backed by a substantial system of law, not only the common law of property, but also statutory creations such as admiralty courts and bond requirements. The government granted the right to search

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and claim prizes, while the privateers had to meet certain requirements under these laws and contracts made with the governments. In this way, privateers became government-contractors. Although these privateers were sent out with a purpose by the government, the government did not control the privateers. The direct decision-making authority and the ownership remained private, while the goal was public. However the privateers also had economic incentives to continue privateering.

Also these practices were legitimated by the concept of plausible deniability, because rulers sought maximum freedom with minimum responsibility. “If a ‘private’ undertaking that a ruler authorized met with success, s/he could claim a share in the profits. If the enterprise caused conflict with another state, the ruler could claim it was a private operation for which s/he could not be held responsible” (Thomson, 1994, p.21). Moreover, with the plausible deniability approach, “nonstate violence could be given a wink and a nod, thereby allowing the state to claim a share in successful efforts or to deny responsibility for endeavors

producing negative consequences” (Thomson, 1994, p.43). As a result, it was unclear which practices were backed by state authority and which were not. In addition, was an act of non-state violence an act of war or a crime? international law could therefore provide the answer.

Laws and Regulations

In history the line between privateering and piracy was very thin. However, laws and courts were created to effectively use and control privateers and determine the accountability by the legitimate commissioning of letters of marque and reprisal. In this chapter several detailed examples of the origins of national laws will be given which form the basis of the legal accountability mechanism for privateers in the nineteenth century.

“Early modern efforts to punish ‘pirates’ often treated them as criminals under

municipal law, rather than international law. They were accused of committing acts outside a state of war, or of exceeding the terms of privateering commissions” (Kempe, 2010, p.356). It was the fight against piracy which fits in with the pursuit for the monopoly on violence by the European state rulers (Sicking, 2014). Around the thirteenth century states started to conclude bilateral treaties to limit the reprisals and to fight against piracy (Sicking, 2014). However, these treaties often turned out to be neglected and therefore the piracy-conflicts were resolved as civil cases aimed at compensation.

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The 1536 Offences at Sea Act was the basis of piracy prosecution in England until 1698, according to Craze (2016). This act criminalized the use of violence at sea and is based on the Cicero-paradigm which sees pirates as the common enemy of everyone and therefore they are legally unprotected and lawless (Sicking, 2014). However, sometimes privateers were accused with acts of piracy or other misconduct. But also in the early modern times admirals often had no interest to condemn privateers, who exceeded their letters of marque, to death because it meant loss of expertise, combat power and private means of violence

(Sicking, 2014, p.24). Nevertheless, privateers were made more disciplined. Especially privateer captains, when they were appointed to patrol and intercept illegal trade, they could count on punishments that were imposed, in addition to the conviction to pay compensation if a price was wrongly obtained (Sicking, 2014, p. 25).

Admiralty courts were created to decide if the price was legally obtained, in other words prize adjudication. The purpose of the prize adjudication was to bring the privateers to shore and in contact with the King’s authority. When in March 1689 King James was forced to abdicate from the throne, he refused and commissioned eight privateers to attack the shipping of the new King William on his behalf (Craze, 2016). These privateers were prosecuted for piracy because, James lost his sovereignty, and his power and authority to grant commissions due to his forced abdication.

This case indicates the legal mechanism based on the legal principles of sovereignty and authority which are needed to commission legitimate letters of marque and reprisal. However, the basis of these letters of marque and reprisal were seen as illegal and made the privateers accountable for piracy.

Contrary to English legal mechanisms, the French tried to control and aid privateering activities through the establishment of regulations and the creation of consuls in foreign ports. Leira and DeCarvalho (2010) argue about the legal mechanisms in French privateering. “Where the regulations formalized the activities of privateers, the consuls were charged with enforcing these regulations, and in general supervising the privateers abroad.” (Leira & DeCarvalho, 2010, p.57).

The Ordonnance Colbert of August 1681 placed consuls under the authority of the admiralty and demanded that prizes had to be returned to French ports, preferably the port where the privateer was outfitted (Leira & DeCarvalho, 2010, p.63). Captains had to gather all papers and passports relating to the load upon seizing a ship. Moreover, while the prize

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needed to be returned directly, the goods may not be opened before the prize had been judged as legitimate. “The Ordonnance Colbert exemplifies the ideal of the centralizing state. If it had been followed to the letter, French privateering would have fitted Thomson's description of states using private providers of violence to further their goals” (Leira & DeCarvalho, 2010, p.65), however in practice these acts were a lot messier.

Briefly, the English legal mechanisms first focused on the basis of the commissions to find out if these were in line with the legal principles as sovereignty and authority. In the early eighteenth century the focus shifted to the crime perpetrated rather than the perpetrator’s political background. However, French legal mechanisms were more focused on the

legitimate practice of obtaining prices and therefore held individual privateers accountable. While the European states gained more sovereignty, they also became increasingly responsible for acts of their subjects; and other states held them responsible. Therefore these states started to issue laws and treaties to refrain their subjects from certain acts and; keep these states neutral so they could not be dragged into conflicts by their subjects. For instance, in the second half of the seventeenth century, the English government began to forbid their subjects from accepting letters of marque issued by foreigners, in order to control freelance privateering (Marsden, 1915). In addition, “the Foreign Enlistment act of 1819 […] forbade ‘any natural-born Subject’ of the British Crown from enlisting in the army of any foreign entity” (Thomson, 1994, p.58).

In sum, while the English focused on prize adjudication, the French focused on the control of privateers. When the European expansion reached its heights around the nineteenth century states began to held each other more and more accountable for international actions of individuals under their sovereign jurisdiction and this also led to new peer and reputational accountability mechanisms.

Peers and Reputation

The peer and reputational accountability can be explained by two examples in which privateering affected the diplomatic and trade relations and, affected the reputation of the Union in international relations during the American Civil War.

First,the trial or punishment of privateers in violation could be deployed in diplomatic relations and have an effect on trade relations. Out of fear that the Prince of Moghulry,

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Aurangzeb would hold the British government responsible for piracy by Englishmen and, its negative consequences for the trade of the English East India Company; the English

government sent a clear signal by hanging captain Kidd in London in 1701 (Kempe, 2010, p.363). Though, this captain was appointed to fight pirates, but he himself turned to plundering and piracy.

Second, while the distinction between lawful and unlawful private maritime violence became harder and harder; states attempted to link well-established principles of international law.The unintended consequences of privateering led to The Declaration of Paris in 1856. This international agreement abolished privateering and became a uniform doctrine on maritime law. Moreover, the Declaration of Paris was revolutionary in international law, in the sense of equality between states, because all states were invited to join the Declaration (Sicking, 2014, p.29). While more and more states became part of the treaty, it became harder for privateers to continue their behavior. One important factor which made privateering unattractable, was the ban on allowing privateers into ports of states that signed the Declaration (Lemnitzer, 2014).

This fits into the public reputational mechanism, because it was seen as unjust to allow privateers into your ports and it would therefore harm you reputation in international

relations. On top of that, the influence of the Declaration as a reputational mechanism was apparent during the American civil war between the Union and the Confederation, even though neither had signed the Declaration. President Lincoln of the Union withstood

Congress’ pressure to issue letters of marque, because he recognized that permitting captains would mean a moral defeat and involved the risk of a war that could lead to European

countries recognizing the Confederation as a state (Sicking, 2014, p.30). This shows that Lincoln realized that by permitting privatization he would risk his reputation which could eventually lead to political loss of the civil war, by the recognition of the Confederation as a state by the European states.

In short,the legal accountability mechanisms before the abolishment of privateering were focused on the legitimate commissioning of privateers with their letters of marque and reprisal. If these privateers did not act on these ordonnances and international treaties or (admiralty) courts determined their prize was obtained illegally, then they would be prosecuted for acts of piracy. However, states were held accountable by other states for international acts of their subject. Therefore states created legal mechanisms to remain neutral

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and avoid accountability. At last, the public reputational mechanism led state rulers to abstain and distance from privateering.

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Chapter two: Accountability mechanisms for Private Military

Companies

The practice of Private Military Companies

To get a better understanding of the role of PMCs, a brief overview of what they are and their rise will be given because, the last two decades we have witnessed a rapid increase on the use of PMCs. These PMCs provide states, international organizations, non-governmental

organizations(NGOs) and corporations with a wide range of services. Not only combat and military assistance, but also transport and intelligence collection. However there is no clear distinction between PMC personnel or a mercenary. Next the legal, peer and reputational accountability mechanisms will be studied and explained to eventually compare them with the mechanisms of privateering in chapter three.

First what are PMCs? PMCs are independent corporations that offer military services. These services range “from running small-scale training missions to providing combat units to composed of up to several hundred highly trained soldiers equipped with powerful weapons platforms, including tanks and attack helicopters” (Bell, 2018).

Singer (2005, 2008) argues about three converging dynamics that account for the rapid proliferation of PMCs in the 1990s. First, the end of the Cold war led states to reduce their military services, which created a large surplus in the supply of professional soldiers. These soldiers, who could only offer their military skills, became available for hire at the open market (Singer, 2008). Second, also an increase in demand for security skills gave rise to PMCs. This increase was created due to the diminishing superpower support after the Cold war. Many weak states fell into civil wars and these fighting governments sought for private security assistance (Singer, 2005). In addition to this development, also NGOs and private companies operating in these states needed private security assistance to defend their activities. On top of that, also more military developed states sought for private security assistance because of their focus on reducing costs with the outsourcing of non-core services. In short all these factor increased the demand for private military services. Thirdly, Singer (2005, 2008) states that the rise of neo-liberalism in the 1980s and its normative shift of the marketization of the public sphere, can be seen as the most important factor leading up to the rise of the private security industry.

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Despite, the increasing demand for the private security industry, also questions were raised. These critics focused on moral concerns and concerns in the way private force is exploited, especially the lack of accountability mechanisms and control over PMCs (Musah & Fayemi, 1999). Also “Widespread media reports describing private security contractors as ‘mercenaries’ or ‘dogs of war’ tarnished the image of PMSC” (Tonkin, 2011, p.15). PMCs do not want to be seen as mercenaries because of the consequences this label has in international law. However, are PMCs mercenaries and moreover how is this regulated in international law? The way international law sees PMCs determines a lot of the accountability mechanism.

Laws and Regulations

There are several legal accountability mechanism for PMCs, but under domestic and

international law it is hard to determine the legal accountability for PMCs, their personnel and states. This accountability problem is created because of loopholes, problems with the

enforcement and it is hard to determine who is accountable under which law. The main problem with the existing legal accountability mechanisms are the

loopholes. Bejesky (2014, p.57) states that international conventions affirm that “mercenaries have no place in modern armed conflict because states are required to assume responsibility for wrongs during combat and for war crimes, and official military troops are agents of the state and act in accordance with sovereign decisions.” In addition, mercenarism is

criminalized in international law. The international legal framework that covers mercenarism is drawn from Article 47 of the 1997 Additional Protocol of the Geneva Conventions, a mercenary:

(a) Is specially recruited locally or abroad in order to fight in an armed conflict; (b) Does, in fact, take a direct part in the hostilities;

(c) Is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party;

(d) Is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict;

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(e) Is not a member of the armed forces of a Party to the conflict; and (f) Has not been sent by a State which is not a Party to the conflict on

official duty as a member of its armed forces (International Committee of the Red Cross, 1977).

Tonkin (2011) points out several of these loopholes by which individuals can exclude themselves from the mercenary classification. First, one of the principal defects of the

definition is the focus on the motivation of the individual; it identifies mercenaries not by reference to what they do, but on why they do it. However, the sole or essential motivation of an individual is very difficult to prove. Second, “paragraph (d) and (e) create further

loopholes […] and can easily be circumvented by granting individual citizenship (d), or by temporarily enrolling the individual in it is national military forces (e)” (Tonkin, 2011, p.30). In addition, Andreopoulos and Brandle (2012) argue that the international legal framework refers to individual mercenaries, not corporate entities, so by stressing their formal corporate nature, PMCs can easily avoid being painted as mercenaries. However, there are still

accountability mechanisms for the conduct of PMCs and obligations and accountability for states under international law.

The legal mechanisms for the conduct of PMCs can be divided into several factors according to Huskey (2012). First, the applicable law or doctrine to determine who is accountable PMSC, individuals or the state? The second factor is what applicable criminal laws and mechanisms, and which state or international body is responsible for enforcing those laws. Furthermore, which applicable civil liability laws and which state or international body is responsible for enforcing those laws and fourth, who has the responsibility to provide reparations to victims, independent of civil liability lawsuits.

First of all, it is hard to determine who is accountable International Human Rights Law (IHRL) is applicable in situations of armed-conflict as well as non-armed conflict. Therefore these human rights apply to the conduct of PMCs personnel under any circumstance. Huskey (2012) states the main non-derogable rights of IHRL. First, “The inherent right to life is the supreme right from which no derogation is permitted even in time of public emergency which threatens the life of the nation”; and second, “The right to be free from torture and cruel, inhuman, and degrading treatment is another non-derogable right” (Huskey, 2012, p.198). These rights are contained in the core human rights instruments, like the Universal

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in armed-conflict, although PMCs most of the time act in armed conflicts, it questionable if states also recognize these conflicts as ‘armed’. On top of that, alleged perpetrators need to be members of armed forces and, the way PMC personnel operates is very complex. Therefore it is hard to determine their rights and protections. For example, PMC personnel provides food transport, but can also perform combat tasks, although not directly member of a state’s armed forces.

As Tonkin (2011) argued, the host, hiring and home state have certain obligations under IHL and IHRL which provide an accountability mechanism to address PMCs misconduct. “The obligation to ensure respect for IHL in Common Article 1 mandates a baseline level of positive action for all states in whose territory PMSCs operate” (Tonkin, 2011, 170). This accounts for all involved states. IHRL provides victims of PMCs misconduct with legal procedures against the host state, because the host state is required to take positive action to regulate PMCs behavior in their territory. This is also applicable for the hiring state, because the hiring state has the obligation to provide effective remedy for victims and hold PMCs accountable under domestic law. In addition, the hiring state also has the obligation to ensure respect for international law. However, the contractual relationship between the hiring state and the PMC gives the state an “excellent position to influence the company’s behavior in the field” (Tonkin, 2011, p.227). Finally the home state can be held responsible for PMCs misconduct on the basis of three factors according to Tonkin: “first, an obligation on the state to prevent or punish a particular PMSC activity; secondly, a failure on the part of the state to take the requisite preventive or penal measures; and, thirdly, a specific instance of the prohibited PMSC activity” (Tonkin, 2011, p.259).

However, there are also problems to enforce these laws. The main problem is: “IHRL generally applies only if an individual is in the territory or jurisdiction of a state party to the instrument” (Huskey, 2012, p. 199), therefore states should prevent harm caused by their subjects, but if this act occurs in another state it is unclear which state has the legal responsibility to ensure the human rights violations.

Furthermore, the two crimes which are likely to arise in the PMCs context are: crime against humanity and war crimes. These criminal offences are brought to criminal courts and tribunals like the International Criminal Court(ICC). The International Criminal Law(ICL) gives authority to IHRL and IHL by making certain violations of those laws criminal offenses (Huskey, 2012, p.202). However if these PMCs can be held accountable under IHL is

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debatable, because their personnel is not necessarily a member of a state’s armed forces, as is the requirement under IHL.

Domestic courts might therefore be the primary venue for criminal accountability. However the effectiveness is questionable. On top of the loopholes in jurisdiction and enforcement, there is the issue of immunity agreements. These PMCs are most of the time granted immunity by the host state to do their job without being disturbed.

Third and fourth, PMCs can be held legally accountable through civil law procedures for abuses through tort and contract claims in domestic courts. These claims may also include violations of international law, however these loopholes still exist. Yet, foreign victims of harm caused by PMCs can bring international tort claims in the courts of the contractor’s home state (Dickinson, 2007). For instance “in the United States, plaintiffs could bring claims against PSCs under the Alien Tort Statute (ATS), which confers jurisdiction on the federal courts to consider ‘torts in violation of the law of nations’ brought by non-citizens.” (Dickinson, 2007). However also these claims can be rejected due to granted immunity to certain actors.

Within the legal framework there are several accountability mechanisms, but the main problems is to successfully enforce and execute these mechanisms. Therefore due to

loopholes, problems with enforcement and immunity agreements the current legal framework is inadequate in successfully dealing with accountability claims.

Peers and Reputation

The existing peer accountability mechanism is based on the contractual accountability of the employees of PMCs. These employees are only accountable to their employers to fulfil their contractual obligations. Furthermore, the PMC is contractually accountable to the hiring state and only if these actors breach their obligations they can be held responsible and have to compensate for the breach (Hedahl, 2012). PMC personnel is therefore only accountable for doing their job right, to their client, besides the criminal offences, for which everyone could be held accountable if they commit them.

Moreover PMCs, their personnel and the hiring state have to deal with public reputational accountability mechanisms. Especially the media plays a big role in this

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under a ‘personal protective services’ contract on behalf of the U.S. Department of State, fired at vehicles in Nisour Square, Baghdad, killing seventeen Iraqis and injuring twenty-four” (Bejesky ,2014, p.71). The FBI investigation determined that the killings were not justified by self-defense and therefore were a criminal act. The Iraqi government, Americans and

foreigners were outraged over the iniquity and called for a removal of Blackwater from Iraq and the responsible employers were fired and convicted (Bejesky, 2012). All actors involved led reputational damage because of this wrongful act. Therefore the hiring state as well as the PMCs try to avoid these wrongful acts because it influences the public opinion on their behavior and could eventually have political consequences, for instance the forced resignation of a government administrator after misconduct.

In short, as with privateering and piracy, the line between a PMC and a mercenary is very thin. This creates a legal problem with the accountability for PMCs, because PMCs can avoid accountability through loopholes. Moreover PMCs may be held accountable under certain laws, but there is lack of enforcement of these laws. However, contracts and the reputation of PMCs and the hiring state make them accountable and these mechanisms may be the only effective mechanisms today.

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Chapter three: Comparing accountability mechanisms

Now that the accountability mechanisms of privateering until its abolishment and the accountability mechanisms for conduct of PMCs have been outlined, the focus is now on comparing these mechanisms. First the similarities will be examined to determine if thinking of ‘state-authorized non-state violence’ has changed or has stayed the same. Next the

differences will be examined to give an answer on the research question: to what extent do today’s accountability mechanisms for state-authorized non-state violence differ from accountability mechanisms in the nineteenth century? Finally there will be concluded if and why states still make use of state-authorized non-state violence.

The similarities

First, the way privateering was structured was by commissioning letters of marque and reprisal. These letters were similar to the contracts of today’s PMCs. These letters put certain obligations and limits to acts of privateering which in their turn made the act legal. In today’s contracts the obligations and limits of the PMCs are stated, in that way PMCs know what they need to do to fulfil these obligations, for instance the guarding of energy facilities. The

similarity in this mechanisms is if these obligations in the contract or letter of marque are/were breached the actor breaching it is held accountable and can be punished.

Another similarity is the admiralty courts or consuls judging the acts of privateering. This judgement determined if the act was legal and also if it was done on a legal basis. This is also the case with today’s PMCs, although they are not judged by special courts, they are held accountable if they act illegaly, like criminal acts. Moreover international law determines what is allowed in conflicts and what not, especially IHL and IHRL. This was also the same for privateering, where national laws puts limits to privateering otherwise these acts would be seen as the criminal act of piracy.

Furthermore, PMCs and mercenaries are closely linked as well as privateers and pirates. Mercenarism is also illegal under international law, just like piracy and therefore

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International Law have put limits to the act of privateering and puts today limits to the

conduct of PMCs. However, there are several loopholes in international as Tonkin has argued. The similarity in the peer and reputational accountability mechanism is that states held/hold each other accountable for the conduct of their subjects. States react on conduct of other states and this affects trade and diplomatic relations. If a state makes use of privateers or PMCs, other states have an opinion about it and will react on that. In addition, the conduct of privateers and PMCs also changes a state’s reputation and this change can have political consequences in international relations or domestically.

The differences

There are also differences between the legal accountability mechanisms for privateering and PMCs. The first difference is the way in which states avoid accountability for wrongful acts. While before the abolition of privateering states made use of the plausible deniability

approach to just deny any responsibility, today this cannot be done so easily. Moreover, states created neutrality acts to avoid accountability for behavior of their subjects. Today these laws still apply, however these PMCs perform today on behalf of these states and fulfil tasks assigned by states. Therefore states cannot avoid accountability on the basis of these acts.

However, states can avoid accountability through the loopholes in international law or through the basis of the enforcement of international law. International Law was before the abolition of privateering less developed than it is today and there are many differences. These differences come to the forefront when studying the accountability mechanisms for states. Today there is much more focus on how to get state accountable for certain conduct next to the actors who perpetrated it. Especially IHL and IHRL place certain obligations upon states to hold them accountable for wrongful acts.

Furthermore, the biggest difference in the legal framework is the basis of these laws. The legal accountability mechanisms before the abolishment of privateering were only based on domestic laws or international bilateral treaties. However, the Declaration of Paris was the first multilateral treaty which provided a legal accountability mechanism. In addition to this treaty also international law was expanded and the basis of the applicable law became much more internationalized. While international law expanded also the enforcement became more

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international, for instance the ICC. However the enforcement still is a problem in international law, because of the sovereignty of states and the non-intervention principle.

Another difference is the focus on the legitimacy over the use of state-authorized non-state violence. Privateers were judged by courts and consuls on their given authority by non-states. Today the question about the legitimacy over the use of violence by PMCs is also heavily debated in international relations, but not a subject for the courts.

The peer accountability mechanisms differ on the basis of how states perceive the actions of their authorized non-state actors. Today the host state of PMCs almost always accepts the use of PMCs by the hiring state because it is in their interests. Therefore these host state will also be more likely to grant immunity to these PMCs. However states still hold each other accountable for wrongful conduct, like the Iraqi government did with the shooting at the Nisour square.

The public reputational accountability mechanism do largely differ. This mechanism has changed due to the extremely increased role of the media over the last two centuries. The media can influence the public opinion on the use of state-authorized non-state violence. Moreover, due to technological advancements it is much easier and transparent to see how states, PMCs and other actors behave, because everything can be filmed and posted onto the internet today.

To conclude, the current thinking about state-authorized non-state violence has changed, but states still continue to use state-authorized non-state violence because it gives them lots of benefits. Next to the financial benefits, also the way in which states can avoid legal accountability are beneficial, because in this way states can almost do whatever they want. However, there is still a reputational aspect with the use of state-authorized non-state violence which the states need to keep in mind. Therefore the accountability mechanisms and the rationale about the use of state-authorized non-state violence have changed, but the enforcement still lacks the same accountability problems as it did in the nineteenth century.

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Conclusion

In sum, states still make use of state-authorized non-state violence because it gives them lots of benefits just like it did in the nineteenth century until it was abolished. States can avoid accountability through loopholes in the current legal framework. Also the enforcement of these mechanisms is a problem and creates a gap in which states and PMCs easily can avoid accountability.

However peer and reputational accountability mechanisms are more and more apparent in the current international relations. (social) Media plays a new role in which conduct of PMCs is shown to the world and this shape the reputation of states and PMCs. This can have political consequences like the resignation of a government administrator for PMC’s misconduct, like the killing of civilians.

By comparing the legal, peer and reputational accountability mechanisms for privateering in the nineteenth century and PMCs today, there can be concluded that these accountability mechanisms really differ to certain extent. Although they have changed

significantly there are also similarities. However, states still make use of state-authorized non-state violence and this shows that these mechanisms are still inadequate in successfully holding the responsible actors accountable. Further research is necessary to solve these accountability issues.

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