The Jus ad Bellum Adherence of Private Security Operations: An Empirical Study in Afghanistan

The Jus ad Bellum Adherence of Private Security Operations: An Empirical Study in Afghanistan

Just war theory remains a central framework for assessing the ethics of war, yet recent scholarship has largely retained a state-centric focus despite the extensive use of private security companies in contemporary conflicts. This article applies jus ad bellum principles to private security operations in Afghanistan between two thousand five and two thousand nine. It asks whether private security company operations were authorized by legitimate authorities and pursued just causes with right intentions, proportionality, a reasonable likelihood of success, and as a last resort. It challenges the common assumption that private armed forces are inherently unable to meet these standards.

Scholars have frequently expressed skepticism about the possibility that operations conducted by private armed forces could ever be considered ethically just. Nick Fotion characterizes private contractors as "loose cannons" and considers them less likely to adhere to the tenets of just war theory than states and state-based armed forces. Dimitrios Machairas, similarly, argues that "One of the most persistent moral objections against the use of private military force is the claim that private military companies lack a socially acceptable cause for participating in an armed conflict. The idea is that killing in warfare can only be justified if it involves attachment to a higher cause, depending, of course, on the morals of the given society or era under consideration." C. A. J. Coady, likewise, argues that the very nature of private warfare makes it unjust: "[s]omeone who hires his gun to the highest bidder or, less dramatically, fights predominantly for money will typically lack the motive appropriate to war." These claims, like many others about the morality of modern private security operations, are likely influenced by longstanding attitudes towards traditional mercenaries, who ravaged polities in the medieval, early modern, and post-Second World War eras. Contrary to these expectations, the evidence examined here shows that all but two of the private security operations under study fully adhered to jus ad bellum requirements. Blackwater and DynCorp failed to meet the principles of just cause and right intention because some of their operations were offensive rather than purely defensive, but the remaining firms satisfied all six tenets.

Given that private armed forces have recently been employed by governments, businesses, international organizations, and nongovernmental organizations to provide offensive and defensive security services in Ukraine, Afghanistan, Iraq, across Africa, and in numerous other states, it is crucial for their clients and opponents to understand whether, and to what extent, these firms can operate ethically during their security activities. Similarly, it is essential for scholars, journalists, members of the private security industry, and other interested parties to have a solid empirical foundation for evaluating the ethics of employing private security companies in modern conflicts for roles such as personnel and site protection, counterinsurgency, and peacekeeping.

To assess how effectively private security operations adhered to the jus ad bellum principles of legitimate authority, just cause, right intention, proportionality, likelihood of success, and last resort, this study analyses operations undertaken by nine private security companies that were involved in two thousand six hundred one documented violent incidents during the War in

Afghanistan between two thousand five and two thousand nine documented in the Private Security Company Violent Incident Dataset, which was developed by the author in two thousand twelve. While these endeavours represent only a fraction of the total number of private security operations that took place during this conflict, they were chosen as a representative sample. The selection includes operations conducted by large firms, such as Blackwater, USPI, and Compass, medium-sized firms like DynCorp, and smaller firms such as Blue Hackle. The sample also encompasses operations involving a range of defensive and offensive security services provided to a range of clients, including government agencies, international organizations, and private companies. Furthermore, it features operations that took place across multiple regions of Afghanistan.

By providing an empirical assessment of private security company operations, the article tests claims that have often been advanced on largely speculative grounds. It proceeds by reviewing the just war literature on private armed forces, assessing the Afghanistan cases against the jus ad bellum principles, and discussing the implications for debates about the ethics and regulation of private security companies.

Literature Review

The volume of scholarship on the ethics of armed conflicts involving private security companies has increased significantly since the start of the wars in Iraq and Afghanistan. Much of the current literature applying just war theory to private security operations applies jus ad bellum principles; however, it tends to rely on anecdotal examples to support the authors' arguments rather than evaluating whether the security operations that took place during modern conflicts tended to adhere to these principles. Employing passing references to medieval mercenary campaigns and then-recent operations of Executive Outcomes and Military Professional Resources Incorporated, Coady argues in Morality and Political Violence that private armed forces are unlikely to adhere to the tenets of just cause and right intention. In "The Good Mercenary?," Tony Lynch and A. J. Walsh examine whether profit-driven private armed forces can adhere to the principles of just cause, right intention, and last resort when they choose to engage in a foreign conflict. In contrast to Coady, they conclude, though on the basis of little evidence, that private armed forces are probably little different from state-based armed forces in these respects and that, therefore, the former should not be deemed ethically inferior to the latter. In "The Principled Case for Employing Private Military and Security Companies in Interventions for Human Rights Purposes," Deane-Peter Baker and James Pattison argue, again on the basis of scant evidence, that private humanitarian interventions may be considered just because the chiefs executive officers of private security companies may, at least occasionally, be driven by a sufficiently right intention, such as a desire to help avert humanitarian catastrophes. Pattison, likewise, largely focuses on jus ad bellum principles in his "Just War Theory and the Privatization of Military Force," and The Morality of Private War. In all of these works he utilizes anecdotal examples to illustrate his well-reasoned assertions that private armed forces may be able to adhere to most, if not all, jus ad bellum tenets.

Works by Machairas, Aaron Ettinger, Amy Eckert, and Cecile Fabre analyze jus ad bellum principles in the context of the recent widespread use of private armed forces in Afghanistan, Iraq, and multiple African states, though with disparate results. Ettinger, Eckert, and Fabre argue that private armed forces can probably adhere to at least some of the jus ad bellum tenets. Machairas, in contrast, asserts that "the mercenary motive poses for private military companies and their personnel a significant moral challenge, which cannot be easily bypassed;" put differently, he argues that private armed forces are unlikely to meet the right intention tenet. Regardless of their position in debates about whether private armed forces can adhere to the tenets of just war theory, the well-reasoned arguments put forward by these authors are largely speculative because they draw on very limited empirical data.

Scott Fitzsimmons' "Just War Theory and Private Security Companies" is one of the only empirical studies of how well twenty-first century private security operations adhered to tenets of just war theory. Like the present study, it uses data on private security operations to assess adherence to tenets. However, it focuses on operations during the Iraq War and assesses how well the employees that took part in these operations adhered to jus in bello just war principles, like discrimination and proportionality. This study, in contrast, undertakes an empirical assessment of how well the private security operations that were undertaken by nine firms in Afghanistan adhered to jus ad bellum tenets and, thus, represents a significant contribution to knowledge about these actors.

Just war theory identifies two main sets of principles for judging whether armed conflict is ethically just. The jus ad bellum principles assess the justice of resorting to force, including legitimate authority, just cause, right intention, proportionality, likelihood of success, and last resort. The jus in bello principles assess combatants' conduct during conflict. Some scholars also identify jus post bellum principles concerning the ethics of postwar reconstruction. Since this study examines the nature of private security operations in Afghanistan, rather than the conduct of individual personnel or post-conflict peacebuilding, it focuses solely on jus ad bellum.