A series of incidents involving employees of private companies operating as security guards have resulted in the deaths of around twenty Iraqis in recent months. The bloodiest of these was on 16 September 2007, when guards working for the United States company Blackwater - which is subcontracted by the Pentagon - shot and killed as many as seventeen civilians at a Baghdad intersection.

The Iraqi government would like to call a halt to the activities of Blackwater,, and begin legal proceedings against it. The human-rights minister Wijdan Mikha'il Salim said on 15 October that an inquiry would publish its results by the end of the month, but that the government had already decided to bring the private companies under Iraqi jurisdiction.

The United States administration takes a very different view: it wants Blackwater and other security companies which operate in Iraq (and which sources variously estimate as numbering 50,000-100,000 employees) to carry on with their activities unencumbered by any legal restrictions. This is even more the case now, when there is pressure both by the Democrats and the US electoral timetable to decrease US troop numbers in Iraq.

Mariano Aguirre is a journalist and writer on international relations. He co-ordinates peace, security and human-rights matters at the Fundacion para las Relaciones Internacionales y el Dialogo Exterior (Fride), in Madrid. He is a fellow of the Transnational Institute, Amsterdam; the former director of the Peace Research Center (CIP), Madrid; and a former programme officer at the Ford Foundation in New York.

Also by Mariano Aguirre on openDemocracy:

"America underneath New York" (18 November 2004)

"The many cities of Buenos Aires" (16 February 2005)

"Exporting democracy, revising torture: the complex missions of Michael Ignatieff" (15 July 2005)

"Mr Rogers goes to war: America's 'democracy by force'" (5 August 2005)

"The Hurricane and the Empire" (5 September 2005)

"Failed states or weak democracies? The state in Latin America" (17 January 2006)

"Haiti: living on the edge" (24 February 2006)

"Spain's 11-M and the right's revenge" (10 March 2006)

"Bush's security strategy: defend the nation, change the world" (31 March 2006)

"Bolivia: the challenges to state reform" (15 September 2006) - with Isabel Moreno

"Power and paradox in the United Nations" (7 November 2006)

The Iraqi human-rights minister's declaration notwithstanding, there is little chance of the weak Iraqi government being able to make legal headway against Blackwater. In 2004, Paul Bremer, as head of the post-occupation Coalition Provisional Authority (CPA) in Iraq, signed Order 17 granting legal immunity to private-security firms which worked for Washington; Iraqi law confirmed this unusual measure. The legal expert Joana Abrisketa of the University of Deusto points out that this immunity makes the security firms triply unaccountable: to military or civil American law, or under the terms of international law (see "Blackwater, mercenaries and the rule of law", Fride, 27 September 2007).

On 4 October 2007, the House of Representatives passed a bill which could bring the private-security contractors under the jurisdiction of United States law. The White House, it is almost needless to say, opposes the measure; but even if it were to be matched by the Senate and pass into law, its effect would not be retroactive; moreover, it would in practice be very difficult to carry out a meaningful investigation in an arena as dangerous as Iraq or to bring witnesses from the streets of Baghdad or Fallujah to a military court in Washington.

The US defence and state departments are pursuing parallel initiatives: using different interpretations of the "uniform code of military justice" to define if a security contractor is working "in declared wars" or as "security escorts for a civilian agency".

The Bush administration is desperately seeking a way to mollify the Iraqi government and at the same not cancel the contract with Blackwater. As part of this effort, it has resorted to extravagant gestures: on 5 October, the state department announced that several of its officials will be sent to Iraq to escort every Blackwater convoy. Jan Schakowsky, the Democratic representative from Illinois) - who has been fighting for years to introduce legislation that will ban the use of private military contractors - said that "dozens and dozens of agents (will) baby-sit these Blackwater units".

Congressional pressure to bring non-state military actors under legal control - and the administration's reaction to the argument - raise serious questions about the relationship between the state's armed agents and their non-state equivalents: among them are what crimes should official military justice have jurisdiction over, and should it equally cover non-American security workers? (see Alissa J Rubin & Paul von Zielbauer, "Blackwater case highlights legal uncertainties", New York Times, 11 October 2007).

The roots of privatisation of war

The tendency by the United States to privatise security is a serious matter. In the last decade, Washington has increasingly subcontracted the use of force to numerous companies (ArmorGroup, Military Professionals Resource Inc [MPRI], and Dyncorp as well as as Blackwater) in several countries (Iraq, Colombia, Somalia, Azerbaijan, Kosovo and Afghanistan). MPRI has been among the companies engaged in training military forces in Nigeria, Saudi Arabia, Taiwan, Ukraine. Many former generals and officials from the cold-war era have reinvented themselves as executives in the new age of privatised war (see Ken Silverstein, Private Warriors [Verso, 2000]). This "revolving- door" system between former officials and military contractors remains very active.

The trend towards the privatisation of security in the United States has three roots:

* the lack of human resources in the American armed forces in relation to all the scenarios in which Washington wants to be present

* the continuation of the "Vietnam syndrome", translating into the government's fear of too many casualties in any distant war

* the privatisation of public services, from prisons to the security forces.

In the case of the prisons and private-security forces there is a "double burden" for the American taxpayers. Jan Schakowsky said in 2002: "American taxpayers already pay $300 billion a year to fund the world´s most powerful military. Why should they have to pay a second time in order to privatise our operations? Are we outsourcing in order to avoid public scrutiny, controversy and embarrassment? Is it to hide body-bags from the media and this shield them from the public opinion?" (see Leslie Wayne, "America's For-Profit Secret Army", New York Times, 13 October 2002). Her words were a premonition of how US government policy would be conducted after the invasion of Iraq five months later.

Since 2003, Blackwater has signed contracts worth $750 million with the Pentagon and the CIA. The company's president Erik Prince, an ex-member of the special-forces division of the US army, says with pride that it represents "the widest ranging and most professional company in the world in military solutions for law enforcement, the provision of security, and peace and stability operations".

Blackwater executives and public-relations officers vehemently reject the designation of their employees and colleagues as to "mercenaries". They say that are legally hired by democratic governments, that they more efficient than the public sector, and that they help to promote democracy: "Blackwater lives its core values of excellence, efficiency, execution, and teamwork. In doing this, we have become the most responsive, cost-effective means of affecting the strategic balance in support of security and peace, and freedom and democracy everywhere".

Blackwater follows in the footsteps of South African, British and Israeli companies, composed of former military officers who are recruited from the armed forces. They are attracted by much higher salaries than in the regular forces, though there are major differentials: Americans earn around €700-1,000 ($995-$1,420) a day, whereas former soldiers from Latin American armies (who have been hired in recent years to work in Iraq and other countries) earn closer to €30-115 ($40-$163) a day.

From the 1970s until the 1990s, mercenaries played a prominent role in sub- Saharan Africa; notorious private military companies such as (South African) Executive Outcomes were called in to compensate for weak government, and in some cases became involved in illegal trading in diamonds and other resources. (It is perhaps symbolic of a wider transition in the forms that mercenary action is taking that Bob Denard, perhaps the most emblematic servant of power in this era - in his case French - died on 13 October 2007.)

In response, the Organisation for the African Union (as it then was) adopted the convention for the elimination of mercenarism in Africa (1977); and the United Nations general assembly approved the international convention against the recruitment, use, financing and training of mercenaries (1989) - though neither the United States nor any European state has ratified it. Moreover, the UN has a working group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination.

The United States and Britain have been trying to promote the legalisation of non-state forces. A green paper by the British foreign office in 2002 praised their work sough legitimation for it; the then foreign secretary Jack Straw wrote in the foreword that "a strong and reputable private military sector might have a role in enabling the UN to respond more rapidly and effectively to crises". At the time, the Labour backbencher Andrew Mackinlay called the proposal "repugnant".

The failure of the UN in Bosnia and Rwanda also caused some analysts to promote the idea that private-security forces could be used for UN missions. The rationale was that some governments' fear of sending their troops on risky missions, and the strict mandates imposed by the Security Council, was an opportunity to turn the privatisation of peacekeeping into a "humanitarian" solution (see David Shearer, "Outsourcing war", Foreign Policy 112/1998).

The monopoly of the use of force

The security forces of a state must guarantee law enforcement. At the most, the state can delegate (say) the protection of department stores or airports to contracted private-security guards; but even then, the state ultimately has responsibility for the security of such public places. It is surely worrying that private-security companies financed by the taxpayer are empowered to discharge duties that should belong to the state.

The legitimate monopoly of the use of force is an attribute of the modern state, in the same way as are control of borders and a legal-administrative and constitutional order which guarantees the security and basic rights of its citizens. That monopoly on violence was the result of a long process which culminated approximately five centuries ago with the founding of the modern state and the creation of standing national armies, putting an end to the reliance on mercenaries to wage war.

The Blackwater case spectacularly reveals the erosion of this concept of the state, and the illogic of privatisation taken to suicidal lengths. During the hurricane Katrina catastrophe in New Orleans in 2005 brought, the Bush administration neglected to provide aid to the city's residents; but it did contract Blackwater and the British company ArmorGroup International to work alongside the army to militarise the city. A reporter wrote: "They all carried automatic assault weapons and had guns strapped to their legs. Their flak jackets were covered with pouches for extra ammunition. When asked what authority they were operating under, one guy said, ‘We're on contract with the Department of Homeland Security.' Then, pointing to one of his comrades, he said, ‘He was even deputized by the governor of the state of Louisiana. We can make arrests and use lethal force if we deem it necessary.'"

Also in openDemocracy on war's new faces:

Paul Rogers, "The spiral of war" (7 March 2002)

Christopher Cramer, "The sense that war makes" (5 October 2006)

Martin Shaw, "The myth of progressive war" (12 October 2006)

Rodrigo de Almeida, "Brazil: the shadow of urban war" (18 July 2007)Once the door is opened to subcontracting and its attendant legal limbo, things become complicated. Individual testimony indicates that employees of private-security firms interrogated and tortured inmates in Abu Ghraib prison. Mercenaries soon begin to take over those tasks which the state doesn't want to be seen to be directly involved in: American federal investigators are examining the alleged illegal arms-trafficking of automatic weapons and military parts to Iraq by Blackwater. Brigadier-General Karl Horst, deputy commander of the US's third infantry division says: "These guys run loose in this country (Iraq) and do stupid stuff. There´s no authority over them...they shoot people, and someone else has to deal with the aftermath" (see Jeremy Scahill, Blackwater: the rise of the world's most powerful mercenary army, Serpent's Tail, 2007).

A country's foreign and security policies are an extension of its domestic policy. If the United States invades Iraq or sends special security services to Colombia; or if another state participates in a UN peace mission - these are war-and-peace activities which the state's own officials and soldiers, professional or recruited, should carry out. When a state is providing forces for a peace operation, it is acting according to the legal instruments that previously had signed. But to assign such responsibilities to private actors is to create legal confusion with potentially dangerous consequences.

The world system is progressively imposing an unequal geography of richness and poverty that is also reflected in the use of violence in the global north and south. Around the peaceful, central areas protected by official and private forces are unlawful, peripheral areas of violence. A possible future for the armed forces of the US and some other countries could be to have elite, high-tech, very well-trained armed forces that would hire private-security forces for short or longer periods of time. In this context, the Blackwater affair could be a turning-point that inaugurates a long process of legal and economic negotiation between the public and the private interest. The result will not be the end of the modern mercenary-system, but the establishment of their legitimacy so that they can play a respectable role in the brave new configuration of world violence.

The American ambassador to Iraq, Ryan Crocker, has declared to Congress that if the state department is to be able to enforce security "there is simply no alternative to sub-contracting". This is a dangerous precedent, because the state ought not to delegate security responsibilities. At most, it could subcontract certain non-violent activities in a way that moves in line with international law. The use of force in the modern age cannot be allowed to slip back into the middle ages.