Having suggested that the effectiveness of the military is the primary and a necessary factor in its legitimacy, I will now consider the importance of a second factor on the Moderate Instrumentalist Approach, which is subjugation to the democratic control of the relevant polity. An adequate degree of democratic control is, in most cases, also a necessary condition and a significant determinant of the legitimacy of the military.
There are three reasons for the importance of democratic control. First, democratic control of the military matters instrumentally since proper subjugation to the polity is likely to lead to a more considered use of military force and reduce the extent to which the polity is influenced by any unreasonable demands by the military for resources and by lobbying to undertake military action. In short, democratic control of the military is likely to lead to fewer wars.19 Second, citizens should have control over their military for reasons of individual self-government. That is, citizens should have some control over the composition of the military of their polity and how it is used because, simply, it is their polity.20 Third, democratic control of the military is required for equality. In general, a citizen should have an equal input (either directly or indirectly through their representatives) into the decisions of their polity because this denotes them as an equal human being with interests and judgments worthy of respect. A military that is not subject to democratic control denies citizens an equal input into the morally significant decisions of their polity, such as the decisions to go to war.
Certain states do not have a relevant democratic polity under which the military should be subject. For instance, a state might be similar to the Rawlsian notion of a 慸ecent hierarchical society In such cases, a military will not be able to achieve full legitimacy, which requires submission to a democratic polity. (To that extent, a fully legitimate military requires a legitimate state.) However, it may still be able to achieve an adequate degree of legitimacy if it is generally reasonably effective and, when there is a degree of consultation and representativeness in the polity (if not full democracy)—as in the case of a decent hierarchical society—it subjects itself to the civilian control that does exist.
The third factor of the Moderate Instrumentalist Approach is the proper treatment of military personnel. This has several elements. Perhaps most obviously, the human rights of military personnel should be upheld. It follows that although military personnel may be subject to risk when engaging in just wars and deterring aggressors, this risk should be minimised where possible (although not at the expense of maintaining unduly high levels of force protection that lead to the violation of jus in bello). It also follows that the polity has a responsibility of care for its military personnel. Its soldiers are owed, at the very least, the equipment, training, and competent military commanders required to minimise the risks that they face. Moreover, as far as possible, the burdens of military service should be distributed fairly. Perhaps inevitably, certain individuals will end up carrying more of the burdens of military service. But, for reasons of equality, the chances that a particular individual will have to perform military service should be the same for those from different sections of society. There should also be equal and reasonable opportunities to undertake other career options. Indeed, for reasons of individual autonomy, military personnel should have a free choice as to whether they are to be soldiers and, ideally, in which particular wars and operations they fight (with a right of conscientious refusal for when they doubt the justifiability of a war or an operation).21
The proper treatment of military personnel—like subjugation to democratic control—is in most cases an important and necessary factor in the legitimacy of the military. I say 慽n most casesbecause there may be instances where a military that is not subjugated to democratic control or that violates its soldiersrights is nevertheless generally extremely effective at fighting just wars and deterring powerful aggressors. The extremely beneficial consequences that it achieves provide it with a degree of legitimacy, perhaps enough for it to be regarded as legitimate all things considered, given the importance of effectiveness outlined above.
PMSCs and the Moderate Instrumentalist Approach
We have seen, then, the three central factors of the Moderate Instrumentalist Approach are: (i) a military抯 effectiveness at fighting just wars and deterring unjust threats, which is the primary, a necessary, and, when extremely effective, a sufficient factor in its legitimacy; (ii) its subjugation to democratic control, which is a significant and typically necessary factor; and (iii) its proper treatment of military personnel, which, likewise, is a significant and typically necessary factor. Having outlined this approach, I will now consider the legitimacy of employing PMSCs. Before doing so, however, it should be noted that my assessment of the use of PMSCs is of the features that we can reasonably expect PMSCs and the employers of PMSCs to possess, given the fact that PMSCs are private companies with a desire to make a profit and the current nature of domestic politics and the international system. (The same is true of my later analyses of a conscripted force and the AVF). It is conceivable that that there could exist a PMSC (and an employer of a PMSC) that would not be subject to some of these problems. There might be a PMSC, for instance, that hires only individuals who are motivated purely by a sense of humanitarian compassion, donates a substantial amount of its profits to charitable causes, treats all of its employees with dignity, and openly discloses all of its operations. Accordingly, many of the problems that I will consider are not necessary features of PMSCs or their employers. To be sure, I think that there do exist some necessary problems22 and I have argued elsewhere that even if PMSCs were properly regulated, their use would still raise some moral concerns.23 My focus in this article, however, is on the most morally significant issues raised for the legitimacy of the military, which largely concern non-necessary—but highly likely—features of PMSCs and their employers.
Industry proponents often highlight the effectiveness of PMSCs as one of their greatest benefits.24 This is predominantly because, the argument runs, they hire experienced military professionals who have extensive training and expertise. It may seem, then, that the employment of PMSCs coheres with the primary legitimating factor on the Moderate Instrumentalist Approach. This perception is largely mistaken, however. The extensive use of PMSCs can be expected to threaten the ability of their employers to fight just wars and to deter unjust aggressors. This is because, first, it is doubtful whether in several roles PMSCs will be militarily effective in the field. This is largely because private contractors are recruited from databases and do not spend time training together, which harms the cohesion and the preparedness of PMSC operations.25 More generally, the use of PMSCs reinforces a narrow, technical (and largely mistaken) view of protection and war fighting as being simply a question of military and security efficacy,26 thereby ignoring other key—often political—factors that are crucial to fighting a just war and to deterring aggressors successfully. Moreover, any (alleged) efficiency savings from the hiring of PMSCs are likely, at least in part, to result from cuts to areas that are important for the legitimacy of military force. These include cutbacks to the mechanisms necessary for effective democratic control and reductions in labour costs. Vetting procedures are also likely to be compromised, with the probable result of an increase in contractor ill discipline27, thereby weakening PMSCsfidelity to the principles of jus in bello (which is necessary to fight just wars).
Nevertheless, it might seem that using PMSCs is beneficial for democratic control because it reduces the 慶ivil-military gap given that it introduces civilians into the military. To elucidate, a central issue for many civil-military relations theorists is the existence of a gap between the military and society, both in terms of differing cultural norms and a lack of connections between the military and society.28 A gap is worrisome because it could exacerbate the civil-military problematique, threatening both the ability of the military to be effective and the degree to which it is subject to democratic control. One worry is that civilians may possess an inadequate understanding of military matters and so too easily give in to military leadersrequests for resources or, conversely, fail to provide adequate funds for the military. An inadequate understanding could also lead to militarism in society as the lack of appreciation for military matters results in the military being overly revered. A further worry is that the differing values of the military and society could mean that the military becomes reluctant to obey the commands of the polity and disenchanted with society at large, believing that society is in a state of moral crisis that the military may be able to help reform.
However, far from tackling the civil-military gap, the use of PMSCs further reduces the role and visibility of the military because of the general lack of transparency and knowledge surrounding the industry and because the regular soldiers who remain focus increasingly on combat operations and thereby become even more distanced from the polity.29 In fact, the employment of PMSCs by democratic states leads to several major issues in terms of democratic control.30 To start with, PMSCs are used by governments to evade the democratic constraints on the use of force, such as the requirement for legislative approval. In addition, the complexity and secretive nature of the contracting process, and the industry more generally, means that there is a lack of transparency and information surrounding PMSCs, which makes democratic oversight of PMSC operations by the legislature and the public very difficult. The lack of information and transparency also makes the real human and financial costs of a war that uses PMSCs difficult to determine and typically underestimated. For instance, there was a massive surge in the number of private contractors in Iraq (likely in between 130,000 and 170,000) from 2004 to 2008, but this hardly caused 搒candal, uproar, or even notice31 Moreover, the use of PMSCs reduces the extent to which the wishes of the democratic polity are realised in theatre since it introduces another set of actors, often with a different agenda, into the process of implementing the dictates of democratically elected representatives on the ground. The practice of subcontracting, which is highly prevalent in the private military and security industry, only makes matters worse since this introduces even more actors. In addition, the market encourages the eschewing of oversight mechanisms and the close control of contractors required for democratic control by the polity, given the bureaucratic costs of maintaining such systems.32
It might also seem that the use of PMSCs does well in regard to the proper treatment of military personnel. This is because private contractors, unlike most regular soldiers, seem to consent freely to participate in every war in which they fight. However, it cannot be reasonably expected that all contractors will freely consent to their particular operations. On the contrary, there are incentives and opportunities, partly stemming from the subcontracted nature of the industry, for PMSCs—which some companies have taken advantage of—to mislead and to cover-up the roles and risks of a contract so that the contractors agree to take on what is a financially lucrative contract for the firm.33 This is particularly the case for 憈hird-country nationals(TCNs), that is, individuals who are not from the host state or the sending state, whom in March 2011 in Iraq comprised 85% of the DoD抯 contractors.34 Once in theatre, several thousands of miles from their home state, it is difficult for a TCN to do much in response to the broken promises about their role. Moreover, TCNs have been subject to notable labour violations, such as payments not being forthcoming, having to work long hours, and being supplied with inadequate food, water, and shelter.35 These issues arise partly because PMSCs, as private companies, have a clear reason to attempt to reduce labour costs,36 but lack powerful incentives to look after their employees, such as a unionised workforce, enforced international regulations, or strong public pressure. Accordingly, the use of PMSCs also raises concerns about the abrogation of the responsibility of care.
Thus, the employment of PMSCs does poorly according to the Moderate Instrumentalist Approach and is therefore generally illegitimate.