As I discuss in a recent International Studies Quarterly article, a transnational system of principles and norms governing private military contractors has emerged against the odds. This system defines the responsibilities of states vis-à-vis private military and security services in international law. It establishes norms of appropriate behavior for private security providers and has created various mechanisms to monitor and enforce these provisions. Even if many of these instruments are non-binding, they have led to changes in government regulation. For instance, U.S. government agencies have written them into contracting requirements, making them enforceable. Even if these developments aren’t all encompassing, they create a very important set of standards for private military and security companies (PMSCs).
How did what seemed like a race to the bottom to everyone from industry leaders (e.g. Richard Fenning of Control Risk Group) to academics like Peter Singer and I, reverse direction?
It was not because of unilateral U.S. action or because the United States forced or paid off others. In fact, the United States was hostile to transnational coordination at the beginning of the progress. What happened was simply that noticing the problem created an opening. An initiative by the Swiss government and the International Committee of the Red Cross gathered stakeholders – governments (including the United States and Britain but many others too), PMSCs, civil society organizations, and even academics – in 2006 to talk about this increasingly visible problem.
These meetings generated new connections and small agreements that led to relatively open conversation and eventually the development of some common ground. As the United States continued to be involved in this process, it began to see its interests and options differently. While pressure from the U.S. Congress helped focus the government’s attention, the practical experience of relying on PMSCs in Iraq and Afghanistan illustrated the problem and helped foster creative ideas.
A few prescient U.S. officials (Gary Motsek and his staff in particular) began to think that a transnational system of rules could serve U.S. interests. These officials saw that problems came not only from U.S. contractors but contractors working for other governments, international organizations, corporations, and nongovernmental organizations. Even though congressional demands never specified – or even imagined – a transnational approach, U.S. officials involved in these meetings saw an opportunity to leverage U.S. purchasing power to influence not only U.S. contractors, but PMSCs that worked for other clients.
U.S. power provided crucial impetus for the emerging norms, by getting states and contractors to take them seriously. Other influencers such as the Swiss government, the Geneva–based Center for the Democratic Control of Armed Forces (DCAF) and human rights groups such as Human Rights First provided different kinds of legitimacy.
Most importantly, this approach seemed to work. As different instruments built on one another the system gathered momentum, leading participants to deepen their commitment and others to join in. The U.N. Working Group on the use of mercenaries, for example, was initially suspicious of nonbinding instruments, but began to use the nonbinding Montreux Document’s language and explore ways in which its work could build on the Montreux process.
All of this suggests that we should take pragmatism more seriously. Pragmatism doesn’t just mean practical problem solving, but also a philosophical and social scientific approach to how focusing on a problem, and building connections between previously unconnected actors who are prepared to engage openly and want to get the job done. An American tradition of philosophy has long paid attention to pragmatism, and social scientists and legal scholars are beginning to catch on. Pragmatism helps explain how other negotiations (including the recent Iran nuclear deal) work too.
It also explains the new constraints on Erik Prince. As even The Intercept articles make clear, he is operating in a different context. His company, Frontier Services Group (FSG), offers a much more circumscribed set of services than Blackwater, few of which would count as military and security services. Prince’s alleged activities were outside the bounds of what FSG offers and the article reports that he pursued them “over the objections” of FSG’s corporate leadership. He is being investigated – rather than lauded – by the U.S. government. Standards and enforcement are still a work in progress, but for the first time there is a regulatory structure to build upon.