The Ethics of Business in Wartime

Some exceptions to this identification of innocence with civilians are accepted. When combatants no longer pose an external threat, they may no longer be targeted. The naked, wounded, sleepy, or surrendered soldier is under certain special conditions, which may grant him immunity. Although posing a serious threat to others alienates the attacker from them, the alienation is temporary, such that if the external threat ceases, the forfeiture should also ceases.

There are a few exceptions to this rule. See McMahan (2004, p. 712).

“Moral responsibility” in this context does not entail culpability; combatants can be fully excused, in which case they are not blamable.

Fabre (2009) argues that neither the permissibility of civilians’ actions nor whether they are liable to attack depends on whether civilians are suppliers of military resources or suppliers of welfare resources: although civilian suppliers on the just side act permissibly and those on the unjust side act impermissibly, none on either side is liable to attack. I shall address this concern in the next section of this article.

See, for example, Scanlon (2000, 2006), and Kamm (2000).

Once again, if the causal contribution of these acts to warfare is indirect and far away, these scientists may not even be subject to the proportionality calculation. Assuming their contributions are not that remote, then it may be justified to target them if that is more effective and less bloody than attacking unjust soldiers.

I shall not discuss here whether the waging of war as a profit-seeking activity is morally appropriate or socially convenient. PMFs generate hostile public reactions because they benefit from war but they have served good purposes by helping NGOs in humanitarian interventions, by training the armed forces of legitimate governments to fight against terrorist organizations, and by controlling rebels and unjust combatants. The case can be made that PMFs are justified to exist if national states and multilateral organizations cannot provide security. Another issue pertains to the question of how regulated the military industry should be; nowadays, there is no legal recourse against PMFs if they do not perform their job according to the contractual terms; the only checks and balances are the PMF’s shareholders and market laws (See PMC options for regulation, 2001–2002; Singer 2005).

For instance, the independence of jus ad bellum and jus in bello favored by just war theorists would be reinforced if wars were entirely fought by mercenaries. And even if we may still claim that we can hold professional soldiers responsible for the wars they fight, there would be reasons to believe that the material contributions to war of voters and taxpayers are less remote than we thought when reviewing the principle of discrimination.

It is less clear whether intentionality plays any role here, because the attribution of intentions to corporate entities is contentious (see French 1979). In a recent, class action lawsuit filed by the Vietnam Association for Victims of Agent Orange/Dioxin against several U.S. chemical companies, the court ruled that a corporation’s “knowledge that [the alleged acts] assist the commission of the offense” constitutes a corporation’s mens rea and that “a corporation as an accomplice need not share the principal’s wrongful intent” (Agent Orange Prod. Liab. Litigation, 373 F. Supp. 2d, 58–59 (E.D.N.Y., 2005). I shall say more about this in the next section.

A recent court decision (October 21, 2009) on a case against Blackwater (now Xe services) is instructive. In that case, the court stressed the need to establish a nexus between a wrongful act and the armed conflict to support a claim. Blackwater argued that an act may constitute a war crime only if it is performed in direct furtherance of a “military objective” rather than for ideological or economic reasons. The court held that plaintiffs must show a “substantial nexus” between the acts complained of and the armed conflict to lend validity to the claims for (corporate) war crimes. This ruling seems to support the idea that a company engaged in actions that contribute to war, but in a manner that is not in direct furtherance of an ongoing war, may have a lesser degree of legal responsibility. In the Blackwater case, the court clarified that the required nexus should be a “more substantial relationship between the armed conflict and the alleged conduct than the mere fact that conduct occurred while an armed conflict is ongoing” (In re XE Services, formerly Blackwater, Alien Tort Litigation, Memorandum Opinion, October 21, 2009, U.S. District Court for the Eastern District of Virginia).

Other corporate activities that are independent of their closeness to the frontline such as corporate political contributions and lobbying activities directed to favor the decision to go to war also may contribute to an unjust war. The fact that defense contractors and other military companies are among the biggest contributors to political campaigns can be interpreted as a business investment rather than as an expression of electoral preferences (Alzola 2012, forthcoming). The 737 biggest defense contractors in the U.S. spent more than $214 million in campaign contributions to federal candidates between 1998 and 2003. Interestingly, two-thirds of the total went to Republicans. Similarly, the top defense contractors spent nearly $1.9 billion on Washington lobbyists between 1998 and 2003 (Makinson 2006).

US District Court for the Southern District of New York: In re South African Apartheid Litigation, 8 Apr 2009.

In 1970, Friedman provided a second formulation of his thesis as follows: “In a free-enterprise, private-property system, a corporate executive is an employee of the owners of the business. He has direct responsibility to his employers. That responsibility is to conduct the business in accordance with their desires, which generally will be to make as much money as possible while conforming to the basic rules of the society, both those embodied in law and those embodied in ethical custom.” (p. 178).