Often leading to controversy, the debate about outsourcing certain defence functions has been renewed by the publication of the White Paper, which envisages a reduction of some 54,000 personnel in the armed forces and a reorganisation of the regimental system around 90 joint service bases. At a time of defence restructuring and questioning of planned spending, the subject of private military companies has particular significance. It merits realistic and considered thought on the revision of international security standards and the changes in Western powers’ views on foreign policy, far removed from the usual contentious reactions to the topic. The question of the institutional and legal status of private military and security companies in the French defence scene is at an historic turning-point. It is imperative that France analyses the pros and cons relevant to this issue and draws the relevant lessons from it.

A New International Security Standard?

Having long been the unseen heart of Iraqi Freedom and the backbone of American stabilisation and reconstruction operations, private companies today number 180,000 personnel of whom between 30,000 and 48,000 are employed in security operations.

The American-British Example

Confronted by the critical scale of the Iraqi problem, in 2004 the US Department of Defense (DoD) adopted a certain number of legal measures to give a framework for the regular employment of PMCs. Of note is the Contractor Accountability Bill, which obliges them to obtain a licence from the Defense Trade Control Office. In 2005 the DoD produced Directive 3020.41, Contractor Personnel Authorized to Accompany the US Armed Forces, which clarifies in detail their legal status. This document lays down the areas of action of PMCs, and those which are unquestionably reserved for regular forces. It imposes a certain number of internal rules on these companies and specifies the conditions under which US forces provide protection for their employees on operations, and the exceptional circumstances in which they may carry arms. In 2007, following numerous incidents involving PMCs⁽¹⁾ and a series of critical reports from the Government Accountability Office (GAO),⁽²⁾ Congress decided to revise the Uniform Code of Military Justice and voted for an amendment which places PMC employees under the jurisdiction of a Court Martial if they contravene the rules of engagement or commit war crimes. This measure marks a decisive step concerning the responsibilities of PMC employees. The means of contracting with private firms, however, remains relatively flexible, so that only contracts exceeding $50 million in value need the approval of Congress. For contracts for less than this amount all that is required is a licence from the Department of State’s Office of Defense Trade Control. One can see in passing the comparable way in which the French law of April 2003, applied to the repression of mercenary activities, has not resulted in a single PMC employee being charged with any offence based on these criteria. It is evident from the flexibility and secrecy involved in the use of PMCs that the US government has only a limited interest in drastically altering the legalisation of this activity.