NOTWITHSTANDING the grave reservations shown by the former and the present members of the Trump administration, the then NSA Lt Gen HR McMaster, the former Secretary of State Rex Tillerson including the incumbent Defence Secretary Gen James Mattis and the Secretary of State Mike Pompeo, President Trump (who euphorically thinks that using private security companies will be a much more politically palatable option in Afghanistan) seems to play a gamble of giving a private contract of the Afghan war to the former CEO of Blackwater Eric Prince, a move that is embroiled in quandary and controversy vis-à-vis international law. The direct participation in the hostilities of persons that are not members of the armed forces or a party to the conflict raises the issue of legality.
The Trump administration is considering a proposal to privatise the United States’ interests in the war in Afghanistan, the founder of a Private Security Company Frontier Services Group (FSG), Eric Prince said last Tuesday. Eric Prince, the former head of Blackwater, told USA Today he proposed using 5,500 private contractors, many former special operations troops, to take on the role of advising Afghan forces. He said the plan also would include a 90-plane air force. That said, White House Press Secretary Sarah Huckabee Sanders said last Wednesday that the President is “committed to finding a political solution to end the conflict in Afghanistan.” ‘’As always, we’re going to continue to review and look at the best ways to move forward,” Sanders said.
In an interview in 2017 titled, “Blackwater Founder Backs Outsourcing Afghan War-Fighting to Contractors,” Prince would defend his proposal for the creation of an “American viceroy” in Afghanistan, consolidating and overseeing all US operations in the country. He would also suggest replacing US troops with private mercenaries who he claimed would operate inside Afghan units, noting that some 25,000 contractors are already present in Afghanistan.’’ But the Prince proposed plan is full of legal, political and security risks. Despite some of the underpinning gaps and anomalies- that exit in the international legal system regarding the subject of Private Military & Security Companies (PMSCs )- that give the states enough legal loophole or space to undertake clandestine action through which they can diminish fundamental rules of international law and escape from their responsibility under international law ( a seemingly hidden motive of the Trump administration behind such a controversial plan), Trump’s government cannot refute the implications argued by international law.
The establishment of PMSCs have raised legal question concerning their status on international law, respect for International Humanitarian Law (IHL), matters of responsibility, attribution and status of PMSCs personnel in the battlefield. Speaking of fundamental rules of international law, we can list three categories considered as jus cogens, specifically prohibition of the threat or use of force under UN Charter, fundamental human rights, and international humanitarian law, as confirmed in Article 50 of ILC Articles on State Responsibility.
Hence, the possibility for breach of peremptory norms of international law through contracted PMSCs, have to be distinct in two groups: imprimis is the possibility for the violation of Article 2(4) of UN Charter, where a state through clandestine operations recourses from the old method of using local irregular forces to use of PMSCs, and the second group is violations of human rights and international humanitarian law by misconduct of PMSCs personnel in their operating area. If powerful states can buy force to pursue foreign policy plans that lack broad international support and can change or undermine the UN and other international institutions, thus increasing the likelihood of conflict. From a strictly legal point of view, it appears that the answer to the question whether individuals employed by private companies are mercenaries will most of the time be negative, as these persons will usually fall outside the conjunctive definition provided for in international instruments. It is a cornerstone of international humanitarian law that, while civilians must be protected to the largest possible extent from the effects of armed conflict and may not be attacked, enemy combatants represent military targets and may be attacked lawfully as long as they are not “hors de combat”. Only combatants have the right to take part in the hostilities. It must be noted that the direct participation in the hostilities of persons that are not members of the armed forces of a party to the conflict also raises the issue of what has recently been referred to as “unlawful combatants”, especially by the US administration in the framework of the war on terror.
Rather than stabilizing and rebuilding Afghanistan, contractors would ensure its perpetual slide into darkness. Instead of dealing with the Taliban, Afghans would face foreign contractors competing to carve out their own personal narco-terrorist fiefdoms. The Prince proposal offers neither the American nor the Afghan people any benefits and is entertained only for the benefits it potentially offers military contractors and the immense armament industry that would provide them a steady stream of weaponry. A look at the Late Roman Empire, and the manner in which mercenaries transformed into independent entities of their own, complete with their own territory and armies that answered only to themselves, serves as a cautionary reminder as to where Prince’s proposal ultimately leads.
Eric Prince and Blackwater are synonymous with murder and mayhem for money clearly evidenced from the role they played in the Iraqi war. What this plan illustrates is the evolution of modern organized crime to be played with the US support. Given the past history of CIA-NDS-RAW nexus, the Trump administration’s plan to give a pivotal role to the FSG in Afghanistan raises eyebrows of Pakistan’s strategists who cast serious doubts that a spying Security Firm with the clandestine Indian hand, may collaboratively play a mischievous role in destabilising Pakistan.
— The writer, an independent ‘IR’ researcher-cum-analyst based in Karachi, is a member of European Consortium for Political Research Standing Group on IR, Critical Peace & Conflict Studies.