¹ The exceptions include Deane-Peter Baker, “Of ‘Mercenaries’ and Prostitutes: Can Private Warriors Be Ethical?” in Andrew Alexandra, Deane-Peter Baker, and Marina Caparini, eds., Private Military and Security Companies: Ethics, Policies and Civil-Military Relations(New York: Routledge, 2008), pp. 30–42; Mervyn Frost, “Regulating Anarchy: The Ethics of PMCs in Global Civil Society,” in ibid., pp. 43–55; Asa Kasher, “Interface Ethics: Military Forces and Private Military Companies,” in ibid., pp. 235–46; James Pattison, “Outsourcing the Responsibility to Protect: Humanitarian Intervention and Private Military Companies,” in Hartmut Behr, ed., Beyond National Security: New Regional and Global Perspectives on Non-State Violence(Lynne Rienner, forthcoming); Kateri Carmola, “It’s All Contracts Now: Private Military Firms and a Clash of Legal Culture,” Brown Journal of World Affairs 13, no. 1 (2006), pp. 161–73; Sarah Percy, “Morality and Regulation,” in Simon Chesterman and Chia Lehnardt, eds., From Mercenaries to Market: The Rise and Regulation of Private Military Companies(New York: Oxford University Press, 2007), pp. 11–28; and P. W. Singer’s excellent Corporate Warriors: The Rise of the Privatized Military Industry(Ithaca, N.Y.: Cornell University Press, 2003), pp. 216–29.

² One example is the principle of legitimate authority, which, according to Mark Evans, “was invoked to prohibit the waging of ‘war’ by just any group of people (for example, mercenaries).” Mark Evans, “In Humanity’s Name: Democracy and the Right to Wage War,” in Mark Evans, ed., Just War Theory: A Reappraisal(Edinburgh: Edinburgh University Press, 2005), p. 78.

³ See, further, Fred Schreier and Marina Caparini, Privatising Security: Law, Practice and Governance of Private Military and Security Companies, Occasional Paper No. 6 (Geneva: Geneva Centre for the Democratic Control of Armed Forces, 2005), pp. 7–9; available at http:\\www.isn.ethz.ch/pubs/ph/details.cfm?lng=en&id=14077; and Singer, Corporate Warriors, pp. 40–48.

⁴ Simon Chesterman and Chia Lehnardt, “Introduction,” in Chesterman and Lehnardt, eds., From Mercenaries to Market, p. 3. As Chesterman and Lehnardt note, this definition does not rely on the dubious distinction between “offensive” and “defensive” operations, which is sometimes used to distinguish between “private military companies” and “private security companies.” In addition, the definition is more precise, since the focus is on firms operating in conflict zones (in a military setting) rather than on those providing security in a stable environment.

⁵ Those who discuss this issue include Baker, “Of ‘Mercenaries’”; C. A. J. Coady, “Mercenary Morality,” in A. G. D. Bradney, ed., International Law and Armed Conflict(Stuttgart: Franz Steiner Verlag, 1992), pp. 55–69; Ian Scobbie, “Mercenary Morality: A Reply to Professor Coady,” in ibid., pp. 71–91; Tony Lynch and A. J. Walsh, “The Good Mercenary?” Journal of Political Philosophy 8, no. 2 (2000), pp. 133–53; Percy, “Morality”; and Schreier and Caparini, Privatising Security.

⁶ Coady, “Mercenary Morality,” p. 63.

⁷ The objection seems to have less force against PMC personnel providing support services, such as housing, that are not necessary to harm per se, but simply to live. I develop an analogous point below.

⁸ Lynch and Walsh, “The Good Mercenary?” p. 135.

⁹ Ibid., pp. 133–34.

¹⁰ Uwe Steinhoff, “Ethics, Mercenaries and African States” (paper presented to the Ethics and Africa Conference, University of Cape Town, May 29–31, 2006), p. 8; available at http:\\www2.gsu.edu/~wwwphl/ethics/africa_conference/papers.html.

¹¹ This distinction is common in the literature on humanitarian intervention. See, e.g., Terry Nardin, “Introduction,” in Terry Nardin and Melissa Williams, eds., NOMOS XLVII: Humanitarian Intervention(New York: New York University Press, 2006), pp. 9–11; James Pattison, “Humanitarian Intervention and International Law: The Moral Significance of an Intervener’s Legal Status,” Critical Review of International Social and Political Philosophy 10, no. 3 (2007), pp. 1–19; and Fernando Tesón, “Ending Tyranny in Iraq,” Ethics & International Affairs 19, no. 2 (2005), pp. 1–20. Scobbie, “A Reply,” also notes this distinction.

¹² See my “Representativeness and Humanitarian Intervention,” Journal of Social Philosophy 38, no. 4 (2007), pp. 569–87.

¹³ Schreier and Caparini, Privatising Security, p. 46.

¹⁴ See ibid.; and Singer, Corporate Warriors.

¹⁵ Christopher Spearin, “Between Public Peacekeepers and Private Forces: Can There Be a Third Way?” International Peacekeeping 12, no. 2 (2005), p. 246.

¹⁶ Brian Orend, The Morality of War(Ontario: Broadview Press, 2006), pp. 31–32.

¹⁷ There may also be reason to prefer this formulation when concerned with the regular military. The differing intentions of various factions within a multinational force, for instance, may mean that we need to consider the intentions of those undertaking force as well.

¹⁸ Thomas Aquinas, Summa Theologiae, Vol. 35, Consequences of Charity, Thomas R. Heath, trans. (New York: Blackfriars, 1972), p. 83.

¹⁹ Tesón, “Ending Tyranny.” Also see my “Humanitarian Intervention and International Law,” pp. 1–19.

²⁰ James Cockayne, “The Global Reorganization of Legitimate Violence: Military Entrepreneurs and the Private Face of International Humanitarian Law,” International Review of the Red Cross 88, no. 863 (2006), p. 478.

²¹ Schreier and Caparini, Privatising Security, p. 68.

²² Sarah Percy, Regulating the Private Security Industry(New York: Routledge, 2006), pp. 41–44.

²³ Coalition Provisional Authority Order Number 17 (Revised), June 27, 2004; available at http:\\www.cpa-iraq.org/regulations/20040627_CPAORD_17_Status_of_Coalition__Rev__with_Annex_A.pdf.

²⁴ Percy, Regulating the Private Security Industry, p. 29. Although the United States has recently extended the Uniform Code of Military Justice to PMC personnel, it is not clear whether this will be enforced. See P. W. Singer, “The Law Catches Up to Private Militaries, Embeds,” Defense Tech, January 3, 2007; available at http:\\www.defensetech.org/archives/003123.html.

²⁵ Jeremy Scahill, “Outsourcing the War,” Nation, May 28, 2007; available at http:\\www.thenation.com/doc/20070528/scahill.

²⁶ Oldrich Bures, “Private Military Companies: A Second Best Peacekeeping Option?” International Peacekeeping 12, no. 4 (2005), pp. 541–42.

²⁷ James Glanz and Alissa J. Rubin, “From Errand to Fatal Shot to Hail of Fire to 17 Deaths,” New York Times, October 3, 2007; available at http:\\www.nytimes.com/2007/10/03/world/middleeast/03firefight.html?scp=2&sq=nisour+square&st=nyt.

²⁸ Doug Brooks, “Messiahs or Mercenaries? The Future of International Private Military Services,” International Peacekeeping 7, no. 4 (2000), pp. 129–44. Brooks also argues that what worries the international community about PMCs is not any particular past incident, but simply the potential to harm.

²⁹ Singer, Corporate Warriors, p. 222.

³⁰ See, further, my “Representativeness and Humanitarian Intervention.”

³¹ Notable defenders of the democratic peace thesis include Michael Doyle, “Kant, Liberal Legacies, and Foreign Affairs: Part I,” Philosophy & Public Affairs 12, no. 3 (1983), pp. 205–35, and “Kant, Liberal Legacies, and Foreign Affairs: Part II,” Philosophy & Public Affairs 12, no. 4 (1983), pp. 323–53; and John M. Owen, “How Liberalism Produces Democratic Peace,” International Security 19, no. 2 (1994), pp. 97–125.

³² I say “largely” (rather than wholly) consistent with traditional notions of legitimate authority because Anna Leander argues that PMCs can directly and indirectly affect a state’s decision to use military force. Not only do they influence the definition of national interests by lobbying, they also create a link between the public and private that is ripe for political corruption—and can result in hawkish behavior by governmental officials. Anna Leander, Eroding State Authority? Private Military Companies and the Legitimate Use of Force(Rome: Centro Militare di Studi Strategici, 2006), p. 108.

³³ Schreier and Caparini, Privatising Security, p. 68.

³⁴ Leander, Eroding State Authority? p. 107.

³⁵ Note that this issue is not solely a concern for democratic states; there may also be a blurring of the lines of command and control when PMCs are employed by nondemocracies.

³⁶ Orend, Morality, pp. 127–37.

³⁷ Orend lists a number of principles under internal jus in bello, including adherence to the external rules, the respect for domestic human rights (which involves a rejection of conscription), and the upholding of soldiers’ rights.

³⁸ As suggested above, the traditional principle of legitimate authority does not address those down the chain of command (the focus instead is on state leaders). The extension of our understanding of legitimate authority to cover those authorizing force and the development of a stronger account of internal jus in bello will also help to redress JWT’s general neglect of those down the chain of command (and those outside it, such as PMCs).

³⁹ Note that JWT is increasingly being viewed as a “scalar” approach, according to which the overall justice of a war is a matter of degree, rather than a “checklist,” according to which all criteria of jus ad bellum, jus in bello, and jus post bellum must be met for a war to be just. As such, although these three solutions may provide extra restrictions on warfare, they do not mean that the bar for a just war will be set unattainably high (i.e., by adding extra “boxes to tick”). For further discussion of the scalar and checklist approaches, see Orend, Morality, pp. 105–06; and my “Legitimacy and Humanitarian Intervention: Who Should Intervene?” International Journal of Human Rights 12, no. 3 (2008), pp. 395–413 and Humanitarian Intervention and the Responsibility to Protect: Who Should Intervene?(Oxford University Press, forthcoming)

⁴⁰ Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations, 4th ed. (New York: Basic Books, 2006).

⁴¹ Although Blackwater are officially employed to guard officials and perform other defensive functions in Iraq, they have, according to some accounts, conducted a number of offensive operations. For instance, the Democratic Majority Staff of the House Committee on Oversight and Government Reform suggest that the vast majority of Blackwater weapons discharges have been preemptive: “Blackwater personnel have participated in 195 incidents in Iraq from January 1, 2005, through September 12, 2007, that involved firearms discharges by Blackwater personnel … on 163 occasions (84% of the shooting incidents), Blackwater personnel were the first to fire.” Democratic Majority Staff of the House Committee on Oversight and Government Reform, Memorandum: Additional Information about Blackwater USA, October 1, 2007, p. 6. For details of DynCorp’s alleged combat roles in Colombia, see Singer, Corporate Warriors, p. 208.

⁴² Walzer, Just and Unjust Wars, p. 145.

⁴³ Singer, Corporate Warriors, pp. 91–100.

⁴⁴ In practice, there may be a blurring of the distinction between those who consent to work for PMCs that provide services near the tip of the spear and those who consent to work for PMCs that provide services not necessary for military force per se. Contractors may also be misled about the roles they will be performing. As a result, in certain cases it may be unclear whether contractors are liable to attack. However, although the distinction may blur at times, it is nevertheless a morally important one for the reasons suggested. And, even though there may be times when the distinction does blur, there may also be many clear-cut cases.

⁴⁵ Jeff McMahan, “The Ethics of Killing in War,” Ethics 114 (2004), pp. 693–733.

⁴⁶ Thomas Hurka, “Liability and Just Cause,” Ethics & International Affairs 21, no. 2 (2007), p. 210.

⁴⁷ Jeff McMahan, “On the Moral Equality of Combatants,” Journal of Political Philosophy 14, no. 4 (2006), p. 381.

⁴⁸ Tesón, “Ending Tyranny,” p. 5.

⁴⁹ Singer, Corporate Warriors.

⁵⁰ Jeff McMahan, “The Sources and Status of Just War Principles,” Journal of Military Ethics 6, no. 2 (2007), p. 104.

⁵¹ Orend, Morality, pp. 108–09.