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Privatisation risks conflict without limits

Waleed Aly

First published in The Age, 13 December 2008

Of the many lamentable contributions this war has made, perhaps the most radical has been the use of private corporations to do what has forever been the most quintessential function of the state: defence.

Perhaps you've never heard of Nisoor Square. It's not as infamous as Abu Ghraib or even Haditha. But this nondescript junction deserves to be spared our collective amnesia, because it has delivered us one of the more troubling and instructive events of the Iraq war. Troubling because it involves the allegedly unprovoked massacre of at least 17 innocent and unarmed Iraqis, and the injury of dozens more. Instructive because it does not involve terrorists or the military of any country, but private contractors hired by the US Government.

This week, the US Justice Department indicted five security guards from Blackwater Worldwide, laying charges against them that included 14 counts each of voluntary manslaughter. The charges could see them imprisoned for 30 years.

The US Government will allege in court that the accused sprayed hundreds of machine-gun rounds into the crowded square, and threw a grenade into a nearby girls' school.

"None of the victims of this shooting was armed; none of them was an insurgent," said Government lawyer Jeffrey Taylor. According to the prosecution, people were gunned down as they attempted to flee. One man was shot in the chest while he was standing in the street with his hands up.

In a way, it's a good look for the US Government, pursuing those allegedly responsible with such candid vigour. The families of the Iraqi victims want the accused to be punished severely, and the US is clearly positioning itself to be able to say it has done so. But let us not be so swiftly seduced. This whole episode raises a series of questions that cannot so easily be silenced by a prosecution.

So let us begin by asking the most fundamental of them: why were these private security guards there in the first place? They were not, after all, performing mundane security functions. They were doing the work of soldiers. In fact, to call them "security guards", while technically correct, is more than a little misleading. All five of the accused are military veterans.

This, frankly, should not surprise us. But it does bring us to the heart of this sordid matter: that of the many lamentable contributions this war has made, perhaps the most radical has been the use of private corporations to do what has forever been the most quintessential function of the state: defence. These are little short of corporate armies. They are often engaged in intense battlefield work. This is, put simply, the privatisation of war.

It's not an entirely new concept. Presidents George Bush Snr and Bill Clinton used them during their respective terms. What is new, however, is the sheer scale of this practice under George W. Bush. An investigation carried out by The Guardian in 2003, found that private corporations together comprised the second biggest army in the invading coalition after the US, and ahead of Britain. This can scarcely be seen as an accident. The Bush Administration defended this outsourcing, and the British Government supported it. Little else could so powerfully demonstrate just how pervasive market rationality has become in contemporary politics.

Surely this is a manifestly horrific idea. To begin with, there are the obvious conflicting interests: companies exist to make profits for themselves; the military is meant to act in the national interest. There is also the issue of how this practice might express itself politically. Since private contractors are not soldiers, they don't count among the war's dead if they are killed. Thus is the true cost of the war hidden from the public, and the Government's accountability for that cost artificially minimised.

But the greatest problems are ethical and legal. The state military is constrained by codes of behaviour and military justice systems, however imperfectly. Corporate militaries have no such limitations. They are more likely to succumb to ill-discipline, and are harder to hold accountable when they do. Even the forthcoming Blackwater prosecution is legally awkward. Precisely on what basis can the charges be brought? The shootings did not take place on American soil, so they can only be tried under laws governing military behaviour.

But there are real doubts that these laws apply to private contractors who are not US soldiers.

To make matters worse, the State Department granted immunities to the accused men to obtain their co-operation during its own investigations. There is a very real chance that these prosecutions could fail before any of the facts are even tried. There's the rub: private armies acting abroad seem to operate in a legal abyss. Only Iraqi courts could prosecute them unproblematically, but then, courts in war zones are seldom in any condition to embark on such legal excursions.

Consider, then, what we have: a host of highly skilled people with powerful weaponry, who enjoy warfare enough to do it commercially, who are unbounded by any enforceable military code of conduct, and who are quite probably operating beyond the law's reach.

Seen in that light, the alleged massacre at Nisoor Square is an inevitable consequence of using mercenaries to fight proxy wars.

At the deepest level, this is not simply a failure of the accused. It is a catastrophic failure of policy.

The prosecution of the Blackwater contractors only serves to mask this fact. It makes a show of holding them accountable, but in truth it removes accountability from those who most deserve it.