Private Armies by Tony Geraghty

Reagan's new policy was given strident expression in October 1984 by Secretary of State George P. Schultz, in an address to the Park Avenue Synagogue, New York, entitled "Terrorism and the modern world". It was a scary speech that argued, in clear reference to covert, unconventional operations, that 'our nation has forces prepared for action, from small teams able to operate virtually undetected to the full weight of our conventional military might.' But public understanding would be needed in advance of the use of such power. 'The public must understand before the fact that there is a potential for loss of life of some of our fighting men and the loss of life of some innocent people...that occasions will come when their government must act before each and every fact is known to ensure public support for U.S. military actions to stop terrorists before they commit some hideous act or in retaliation for an attack on our people."

If America was 'to respond or pre-empt effectively...there will not be time for a renewed national debate...We never have the kind of evidence that can stand up in an American court of law. But we cannot allow ourselves to become the Hamlet of nations...Fighting terrorism will not be a clean or pleasant contest but we have no choice but to play it."

Here, plainly laid out, was an agenda for covert, pre-emptive use of lethal force, or for retaliation, without pause for thought or argument or adequate proof, combined with an acceptance that innocent lives would be lost.

Action soon followed in the bombing attack on the Imam Rida Mosque in a suburb of Beirut which killed 86 persons and wounded 256, mostly women and school girls though the intended target, the alleged mastermind of the bombing of the Marine barracks, escaped unharmed. According to Bob Woodward, senior Saudi government officials and CIA director Bill Casey directed this bombing using several English-speaking, U.S.- trained 'rogue operators' acting in cooperation with elements in the Lebanese government.

During the Iran-Contra hearings in July of 1987, some Senators were not overjoyed to discover a foreigner acting as a surrogate for a covert American military program. Senator William Cohen questioned 'whether it is appropriate to use private entrepreneurs to carry out covert objectives without specific and very rigid guidelines to make sure that profit motives don't contradict or corrode the public purpose...Whether it is a tolerable practice to authorize a covert solicitation of foreign countries to pay for programs either not authorized by Congress or rejected by Congress.'

Representative Henry Waxman's long campaign to investigate Halliburton, the U.S.'s chief private military contractor both at home and abroad, has met with nothing but foot-dragging delays, censorship and lies, probably resulting in hundreds of millions of dollars lost to U.S. taxpayers in overcharges, waste, bribery and fraud. When Halliburton or its subsidiary Kellog, Brown & Root have been caught red-handed their fines have been minimal and their rewards renewed, no- bid contracts negotiated in secret.

Following the deaths of seventeen Iraqi civilians, at the hands of Blackwater guns protecting U.S. diplomats in Baghdad on 17 September 2007, Senator Hillary Clinton announced that she had co-sponsored legislation to ban the use of private military companies in Iraq. Her statement said:

From this war's very beginning, this administration has permitted thousands of heavily-armed military contractors to march through Iraq without any law or court to reign them in or hold them accountable. These private security contractors have been reckless and compromised our mission in Iraq. The time to show these contractors the door is long past due..."

If neither nation-states nor the UN could legislate effectively against the excesses of the worse kind of mercenary- and plenty of those are still at work-- then there is one final, forlorn hope. That is the International Criminal Court (ICC), a worthy body invented by the UN in 1998 after a mere 50 years of gestation. As the UN itself explained:

An international criminal court has been called the missing link in the international legal system. The International Court of Justice at The Hague only handles cases between States, not individuals. Without an international criminal court for dealing with individual responsibility as an enforcement mechanism, acts of genocide and egregious violations of human rights often go unpunished.

The ICC was able to start work in 2002 when 60 countries ratified the relevant treaty but progress was slow. One of the reasons for this limping progress was the decision of President George Bush not to ratify the ICC treaty since he feared that American soldiers serving as peacekeepers in such places as Bosnia might be the victims of show trials characterizing them as terrorists. In fact, the U.S. did get its way in arranging with the UN that its peacekeepers were exempt from arrest or trial by the ICC for one year. The UN caved in after the US threatened to veto UN peacekeeping missions one by one.

Washington went further. It offered a number of hard-up governments trade-and-aid deals, so long as the recipients did not sign up to the ICC. By 2003, a total of 37 countries worldwide, some in Africa, had agreed to join Washington's ICC-Boycott club. Philippe Sands, and international lawyer and author of Lawless World: America and the Making and Breaking of Global Rules, recalled in 2005 a typical shoot-from-the-hip Bushism : "I don't care what the international lawyers say."

Some observers noted the extent to which private security companies based in the U.S. were on the ground in large numbers in some of the key areas affected by Washington's attitude towards the ICC.


In such a climate the prospect of bringing the security companies (however they identified themselves) under the rule of law seemed very unlikely. It was not only Paul Bremer's Order 17 that provided the better-connected freelance soldiers with a license to kill in Iraq. Bush's opposition to the ICC potentially extended the process to many other parts of the world.

His approach had deep roots. One might almost say that to impose US law outside its proper jurisdiction was almost part of the American tradition by the time Bush expressed his distaste for any alternative. A policy known as "the Presidential snatch option'- the arrest anywhere of terrorist suspects as an alternative to assassination- was invented by Reagan in 1985. The new doctrine was set out in a secret legal opinion entitled 'Authority of the FBI to Override Customary or Other International Law in the Use of Extraterritorial Law Enforcement Activity".

In the post-9/11 world US jurisdiction was extended beyond the reach of US jurisdiction, at Guantanamo Bay and countless secret CIA prisons around the globe. In such a world, the prospects for any viable international law to control freelance soldiers were less than good. The British Foreign Secretary, Jack Straw, appeared to bow to the inevitable when he wrote his introduction to his department's Green Paper in 2002. He said, "One of the reasons for considering the option of a licensing regime is that it may be desirable to distinguish between reputable and disreputable private sector operators, to encourage and support the former while, as far as possible, eliminating the latter."

Selective self-regulation, commercially controlled in a world of privatized warfare and corporate peacekeeping, was now seen as an alternative to the vision of the Nuremberg War Crimes Tribunal, the Atlantic Charter and the United Nations in defending the rule of law and fundamental human rights.