The following interview with Dr. Sean McFate[1] was carried out at the National Defense University in Washington D.C. on June 23, 2016 by Frauke Renz. The main focus of the interview was on trends of the private security industry,[2] regulatory efforts, questions about accountability and jurisdiction, the foreign legion approach as well as training of local military forces. All footnotes are remarks by Frauke Renz, aimed at giving some additional background knowledge and especially giving the links to the cited documents so that the reader can follow up on these issues easily.

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Trends of the Industry and Regulatory Efforts

In your book The Modern Mercenary[3] you mention that the development of cheap and accessible technology in the field of robotics as well as cyber weapons will be combined with Private Military Companies (PMC) operating armed drones and using cyberattacks. Do you think this trend is going to affect state accountability for the acts of those PMC?

Yes I do. The future mixture of private military force in a more diverse market, as well as accessible technology to robotics and cyber, will combined create lethal forces. One of the main challenges of cyber is attribution. And that is also an issue in the private military sphere. We, for example, don’t know who was active in Nigeria last year.[4] For clients who want discretion and who want force, which is a lot of people in the world, this is a growth industry. So I do expect, and am forecasting – which is always a dangerous art – that this industry will grow. It will not be an explosive but rather a steady growth in the decades to come. There is nothing in place to retard this growth given the lack of international law and law enforcement. I don’t see anything stopping this from occurring. For somebody to say that this is not going to happen, they would have to prove to me what would stop the status quo from gaining momentum.

There is no international regulation of PMSC and only some countries have national regulation. Do you see any benefit in industry initiatives such as the International Code of Conduct (ICoC)?[5]

I see a benefit, but this is an area where I disagree with some of my colleagues, such as Rebecca DeWinter-Schmitt[6] and Doug Brooks.[7] I am more skeptical about these instruments and let me tell you why. While I think they are good, I don’t think that they are as good as people hope they would be or want them to be. Another person I have mild disagreements with, in this respect, is Debbie Avant.[8]

I was in DynCorp International[9] when the Swiss Initiative[10] started in 2005, and I was looking at it within DynCorp from an industry perspective. The industry, leaving DynCorp out of this, looks at this as a good marketing opportunity. They don’t see this as an accountability issue. A lot of academics and people outside the industry do not understand this. It is the same problem with corporate social responsibility (CSR). There are some firms who take CSR seriously and all industry members who sign up for the ICoC would also say they take it seriously, but once it becomes too burdensome they will just leave, which is not really enforcement. Furthermore, look at what happened to Blackwater after Nisour Square: they got kicked out of the International Stability Operations Association (ISOA).[11] That is not enforcement. That is getting kicked out of a club.

Those defending these standards say that you can prevent the companies from getting contracts. I don’t see this being the case. Look at the mercenaries and contractors in Syria, Yemen, Nigeria, Ukraine, Iraq.  How is this going to impact them? Those who are looking at those models are still focusing on 2007. They are behind the times. The Department of Defense (DoD) is now writing more accountability clauses into contracts.[12] But they are getting to the point where it is no longer cost effective to use contractors to begin with. And then people will ask why we are not contracting these services out anymore.

In general contractors are, at least in the short run, cheaper to use. For those reasons I don’t think those instruments are terribly powerful. One, there is a lack of enforcement. Two, they only impact a limited amount of the sector, which is “first world” PMCs. The real problems are in Nigeria and Yemen. Lastly, even if you had, for example, a Geneva Protocol that addressed the issue of armed civilian contractors, it would be difficult to enforce. And I think there is a reason why after 15 years of using PMCs, this has not been seriously done even though the UN declared those companies mercenaries in 2009. The reason it would be difficult to enforce is the same reason why it was difficult to control mercenaries in the Middle Ages, such as the mercenaries in Switzerland or the Landsknechts. The problem is who will arrest those people? Mercenaries can shoot back. They can kill your law enforcement and they are not going to be in London, Bern or New York, they are going to be in the Congo, in Yemen. You would have to go into Northern Nigeria with the U.S. Marine Corps to arrest them. And nobody has the political will and appetite to do that. Even if you had international laws on the books, it would be very hard to enforce.

And there is this general discussion about the role of international law writ large. The EU takes international law very seriously, the U.S. does not. International law is considered an interesting perspective, such as when academics write an amicus brief to a court. It is not taken as “law.” International law is a euphemism, depending on whom you talk to. So regulation is not going to solve this problem. We will therefore run into similar problems as we did in the Middle Ages. It is obviously not a one to one comparison to today. But the market for force is probably the hardest market to regulate of any sort of commodity. I therefore remain skeptical. Even though I believe they [ICoC] are good tools, they are not the solution.

So you believe that the market is going to develop into two strands, one with companies that adhere to industry standards and are working for Western governments and one with companies operating without standards or licenses for other actors? Or do you believe there could be a way to find regulation that would address this issue sufficiently?

I believe that we are developing two tracks but those are not bright lines. They can blur. The PSC.1 and ICoC track is limited. It helps and creates transparency but might also market itself out by making it no longer efficient to use contractors. Writ large, there are ways you could try to impose regulation. You could, for example, do what South Africa has done.[13] But that didn’t stop Nigeria.[14] So you have to ask yourself why not and that is an interesting case study. The reason is that the rule of law in South Africa is not as strong as people like to believe. It is stronger than in some of the neighboring countries, but there is a lot of political rhetoric versus actual political will.

One way you could mitigate this industry, which those who want to regulate this industry don’t pay enough attention to, is that you could legally go after the clients. Maybe you can’t go after the mercenaries in Nigeria but after the Nigerian government. Mercenaries or contractors can just disappear one day and put up a shop the next day with a new name and slogan, as for example Blackwater has done.[15] But governments like Nigeria and big Fortune 500 companies can’t do that; they face reputational risk and you can put pressure on them. There is also potential for shareholder activism, for publically traded private military companies. I have advocated that you really cannot regulate this industry but that you can shape the market behavior by using market mechanisms, and I believe this is a more fruitful way to go. Plus, you have to go into this knowing that it is hard. It may not be possible to do it.

Furthermore, you have to look at what happened when states monopolized force, because that is really miraculous. The status quo ante [i.e., the Middle Ages] where nobody had monopoly of force, that is normal. The last couple of hundred years have been anomalous. And that is the point of my book [The Modern Mercenary]. We have to step back and figure out our normative framework and how feasible, viable and realistic that framework is for the 21st century. I don’t see the 21st century as some of my colleagues do. I am a little more skeptical about the future of global security governance.

Do you believe there are any roles, which should never be outsourced by governments and which should be considered inherently governmental functions?

Initially, in the 1980s, there were. During the Reagan and Thatcher privatization revolution, nobody thought about outsourcing trigger pulling. Over time people have moved the goalposts for all sorts of reasons. I am less normative than some of my colleagues. Inherently governmental is a label that we put on things, nothing more. When you want to believe that there is something inherently governmental, you have to think that there is something truly special about states. My view of statehood and state formation is a minority view in the international relations field. I see states as a security racket, there is nothing special about states. If states want to have a monopoly of force, it does not make sense that they lease out that monopoly, which is what the U.S. has done. Because all that does is breed mercenaries. The U.S. did not invent mercenaries but certainly propelled the market for it. And let us leave aside labels of private military contractors, private security contractors and mercenaries; I will use the terms interchangeably.

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The Foreign Legion Approach

In another article you argued that the U.S. should establish something similar to the French Foreign Legion.[16]

Americans are in denial about contractors. Ash Carter was my professor and advisor at Harvard and I had this discussion with him in 2004, saying that our use of contractors was going to create a huge market for force, and asking what would happen to the contractors after we are done using them. He argued they would just go away. And this is the fundamental problem. Americans think that contractors are like cheap military reservists, and that when we are done using them, they will demobilize and return back to society automatically. And that is idiotic because these are not reservists. These are profit maximizing entities that are multinational by nature. And they are going to seek new clients. Only few, such as Executive Outcomes,[17] go out of business by choice. They could have done other things. Some won’t, just as Erik Prince with Frontier Services Group.[18] We therefore shouldn’t be surprised. If half or more of our military force structure in warzones is contracted and most of the contractors are not even Americans – something many Americans still don’t realize and are in denial about – then at least do a hybrid model that provides some accountability and some institutional coherence instead of just employing random contractors. On this, Doug Brooks and me disagree as he argues contractors are more efficient. But I would suggest that if we are going to do this, let us have a French Foreign Legion model where they are under the Uniform Code of Military Justice (UCMJ),[19] they are in it for the long term and they operate under U.S. doctrine and don’t go to work for non-U.S. entities. That could also be a pathway to citizenship, which is a very controversial topic in this election year, obviously. But people don’t realize that we already do this in the U.S. military. People join the U.S. Army to become a citizen. There is a lot of ignorance on this issue. So this would be a viable model. Otherwise we have to have a Vietnam like draft or we have to become an isolationist nation, but there is unfortunately no serious dialogue about this. Instead, there is this idea that we can be everywhere at once without thinking about how to man the military that already some people argue is too small. So it would be a viable model for the U.S. if it wants to reign in this industry.

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Accountability and Jurisdiction

While contractors working for the Department of Defense fall under the Military Extraterritorial Jurisdiction Act (MEJA),[20] those working for the State Department don’t. This was especially in issue in the Blackwater trial, where jurisdiction will again have to be discussed.[21]

It is a very problematic and political trial. I have mixed feelings about it. I am not apologizing for what the contractors did, but it did not seem fair. Overall, the jurisdiction question is problematic. There are some facile notions that UCMJ could be applied to civilian contractors. That is nonsense. If you have a Filipino contractor working for a U.S. company in a war zone in Afghanistan, whose jurisdiction is it? A good labor lawyer would shred such a case in seconds. There are members of Congress that are quite naïve, even though they are lawmakers, about how law works. If you are a civilian, you can simply not be subject to UCMJ. Even though you might sign a contract waving your rights, which I am not sure you can legally do, this would be a problem. Peter Singer[22] proposed this in 2007/08 and it is just an idiotic idea. And MEJA has not been enforced really. There is a reason for that. What these think tankers have to do is ask real life labor lawyers how this would actually work. Being in the industry and having to work with lawyers, I know that you have a lot of jurisdiction issues. Plus, there are problems of evidence. These are all the problems of Nisour Square,[23] and then it became a show trial as well. There is a powerful stigma and dogma against contractors that weighs in. People talk about how awful Nisour Square was, and it was awful, but nobody talks about the Haditha massacre,[24] where marines did something far worse. There is not a subtle but a blatant double standard that many countries have and which I try to get into in the book as well. This goes back to the monopoly of force and how contractors had to be outlawed and stigmatized for the safety of the state. This became for example evident in 1856 when privateers were outlawed in Paris.[25] States monopolized the use of force for their own self-protection. That is why I think that UCMJ and MEJA are poor thinking.

At a recent meeting the proposed revision of the International Traffic in Arms Regulations (ITAR)[26] was discussed, which might lead to training no longer falling under the category of defense services. As you have done those training services yourself, what is your opinion on this revision?

I have done a lot of work on ITAR, both for DynCorp International as well as for Amnesty International. There are a lot of challenges that were not foreseen when ITAR was created. The question what counts as training is one of those issues. Does advising the Minister of Defense count as a private military service? It is fine to make a differentiation between products and services in regulation but services now seem to me to be a very ambiguous category in which academics can probably figure out 60 different subcategories. So I don’t know the answers but recognize the problem with this issue. Any time you deal with international treaties and law there is a level of complexity and it is challenging for companies to know when an export license is needed.

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Training of Local Militaries

When you were working for DynCorp International and were training local military forces in Liberia, what role did training in international humanitarian law play?

That is an interesting story, which I try to bring out in the book as well. I don’t like DynCorp International as a company but I had the privilege to work with some good people on the ground. When we created basic training for the new Liberian military,[27] which was a U.S. government contract to support Liberia and as far as I know the first time one nation state hired a private company to raise another nation state’s military in over a century, we did a completely different model than DoD. And I believe our model has borne fruit whereas the DoD’s training in Iraq, Syria and Afghanistan has been a complete, as you would say in the army, clusterfuck. One of the things that we did early on was to spend more time on civics and national heritage as well as literacy training than on basic rifle marksmanship. And we had maybe twelve or thirteen weeks of basic training of which the majority was on things like civics and laws of war. We did not really focus on the Rome Statute, given the U.S.’s objection to it, but we did as much as we could. After the first round of basic training the U.S. government stripped this part out of basic training, saying it was too expensive and not necessary. It is funny as there was a fight between DoD and State Department. This is one of these weird situations in which the State Department owned the contract but DoD owned the expertise while DynCorp was the contractor and it all affected the Liberian government. So it was a strange four-person-dance. DynCorp did what the client asked it to do, which was the U.S. government and not the Liberian government. And State Department owned the contract but deferred it to DoD. So DoD asked why we were spending time on gender and laws of war, the Liberian constitution and Liberian history. The problem of course was that Liberia has 16 ethnic groups and no national identity. But the DoD believed that we just needed to teach them how to shoot. So they stripped all of this out and shrunk it into a six or seven-week training, to save money. Literacy was also omitted, which was a bad decision in my opinion. So if you look at this problem and at how incompetent the DoD is at raising security forces in Iraq, Syria and Afghanistan, it is partly because they don’t take things such as national identity politics seriously. They just follow the logic of “train and equip”. If this is all you do, it guarantees failure. So we had groups in Syria that the CIA or DoD were training, which either gave or sold their weapons to the enemy or fought each other. It is imbecilic.

One more note on this: a lot of the aspects I was not able to put into The Modern Mercenary, I included in a fiction novel, Shadow War. That novel comes closer to describing what this relationship looks like on the ground, what this new way of war and new way of warriors means than academic footnotes. In many situations it was better for me to fictionalize the story to not get sued, and it is also more palatable and has more reach. The novel started as a memoire and I changed it to fiction. So people who want to get a flavor for what this world is and what it might be becoming, please check out the book Shadow War.[28]

Thank you very much for the interview.

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[1] More about Sean McFate and his work in the industry, academia as well as his recent novel Shadow War at: http://seanmcfate.com/.

[2] There is an ongoing debate between academia, NGOs, the government and the industry whether the correct term is Private Security Companies (PSC), Private Military Companies (PMC), or Private Military and Security Companies (PMSC). The terms are used interchangeably in this interview.

[3] The Modern Mercenary combines first-hand industry insights, diverse case studies as well as the concept of neomedievalism and is a must read for everyone interested in the industry: https://global.oup.com/academic/product/the-modern-mercenary-9780199360109?cc=us&lang=en&.

[4] Mercenaries from South Africa are said to have been hired by the Nigerian government to help in the long struggling fight against the terrorist organization Boko Haram: https://www.theguardian.com/world/2015/apr/14/south-africas-ageing-white-mercenaries-who-helped-turn-tide-on-boko-haram.

[5] The International Code of Conduct for Private Security Service Providers is the result of a multi-stakeholder initiative led by the Swiss government. It can be accessed here: http://icoca.ch/en/the_icoc.

[6] For the interview of IR.Asia with Rebecca DeWinter-Schmitt and her take on self-regulatory efforts, refer to: http://www.international-relations.asia/rebecca-dewinterschmitt-human-analytics/.

[7] The interview with Doug Brooks on the private security industry, conducted by IR.Asia, is available here: http://www.international-relations.asia/doug-brooks-president-emeritus-international-stability-operations-association-isoa/.

[8] For the interview with Prof. Deborah Avant and her view on PMSC in general, please refer to: http://www.international-relations.asia/deborah-avant-director-center-for-international-security-diplomacy-university-of-denver/. She voiced her positive stance on self-regulatory initiatives here: https://www.washingtonpost.com/news/monkey-cage/wp/2016/04/12/people-including-me-used-to-think-that-the-private-military-industry-couldnt-govern-itself-we-were-wrong/.

[9] DynCorp International is one of the world’s largest PMSC: http://www.dyn-intl.com/.

[10] More about the Swiss Initiative to regulate PMSC: https://www.eda.admin.ch/eda/en/fdfa/foreign-policy/international-law/international-humanitarian-law/private-military-security-companies.html.

[11] ISOA is an industry association for private security providers: http://www.stability-operations.org/.

[12] Among others, PSC have to be compliant with the PSC.1 standard. More concerning PSC requirements put forth by the DoD here: http://www.acq.osd.mil/log/ps/psc.html.

[13] South Africa has passed legislation to restrict the growth of the private security industry and its activities throughout the African continent. The legislation can be accessed here: http://psm.du.edu/national_regulation/south_africa.html.

[14] As mentioned before, mercenaries from South Africa were hired to fight against Boko Haram in Nigeria, violating South African anti-mercenary regulation.

[15]  Blackwater was first renamed into Xe Services LLC and afterwards rebranded into Academi: http://www.wsj.com/articles/SB10001424052970204319004577089021757803802.

[16] Sean McFate made this argument in the op-ed “We need an American Foreign Legion” in the Washington Post: https://www.washingtonpost.com/opinions/we-need-an-american-foreign-legion/2016/05/19/9a04d24e-176e-11e6-9e16-2e5a123aac62_story.html.

[17] Executive Outcomes was a mercenary firm, which operated among others in Angola and Sierra Leone.

[18] Erik Prince, founder of Blackwater, is now Chairman and Executive Director of the HongKong listed company Frontier Services Group: http://www.fsgroup.com/our-team/erik-prince/.

[19] UCMJ is applicable to all members of the U.S. military. To access the code: http://www.au.af.mil/au/awc/awcgate/ucmj.htm.

[20] MEJA is designed to address criminal offences committed by members of the armed forces as well as by persons accompanying them outside the United States. It can be accessed here: https://www.justice.gov/criminal-hrsp/meja.

[21] The key debate is about the question whether civilians working for the State Department, as did the Blackwater contractors on trial, can be sued under MEJA even though this is only intended for civilians accompanying the armed forces. More on this jurisdiction issue here: http://www.law360.com/articles/757015/defense-attys-support-blackwater-guards-in-dc-circ-appeal.

[22] For an insight into Peter Singer’s view on issues of jurisdiction, please refer to his Q&A with Brookings: http://www.brookings.edu/research/opinions/2007/01/12defenseindustry-singer.

[23] For an overview over the Blackwater trial, refer to these two posts: https://www.justsecurity.org/16726/blackwater-trial-part-1-factual-issues/ and https://www.justsecurity.org/16807/blackwater-trial-part-2-legal-issues/.

[24] More about the Haditha massacre: http://www.cnn.com/2013/10/30/world/meast/haditha-killings-fast-facts/.

[25] The Paris Declaration Respecting Maritime Laws, signed in Paris on April 16, 1856, reiterated that privateering was abolished. The treaty can be accessed here: https://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=473FCB0F41DCC63BC12563CD0051492D.

[26] To access ITAR and get information about updates: http://www.pmddtc.state.gov/regulations_laws/itar.html.

[27] More on Sean McFate’s experience of training the Liberian military: http://foreignpolicy.com/2010/01/07/i-built-an-african-army-2/.

[28] For everyone who enjoys Tom Clancy’s novels, Shadow War is a must read, especially as it portrays the role that private contractors are playing, already today, in security operations worldwide.

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