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Activities of private military and security companies: issues of legitimacy and law

Egorova Alexandra Konstantinovna

ORCID: 0000-0002-0383-1550

Postgraduate student of the Department of Criminal Law, Criminal Procedure and Criminalistics of the Moscow State Institute (University) Ministry of Foreign Affairs of the Russian Federation

119454, Russia, Moskva, g. Moscow, pr. Vernadskogo, 76

egorova.a.k@my.mgimo.ru

DOI:

10.25136/2409-7136.2022.5.38056

Received:

11-05-2022


Published:

18-05-2022


Abstract: The article examines the assessment of the activities of private military and security companies through the prism of the legitimacy of their activities, the legitimacy of the decisions of the authorities on the basis of which they act and the legal norms regulating these relationships. An important issue is the difference in the legitimacy of state institutions, such as the army and the police, which traditionally implement the functions of the state associated with the monopoly on the use of force and private military and security companies, historically dating back to mercenary groups. The author touches upon the role of various national approaches to the regulation of PMSCs and their impact on public perception of their activities. The main conclusions of this study are to highlight the importance of the issue of the legitimacy of the activities of private military and security companies and the legitimacy of government orders for a balanced legal assessment of existing legislation, its problems and prospects for development. The philosophical and political dimension of the legitimacy problem makes it possible to expand the view of the situation for political actors and legislators in order to be able not only to create retrospective norms that can only respond to crisis situations in a limited way and not keep up with the development of the industry, but also to establish promising parameters that form the legal basis for the activities of private military and security companies.


Keywords:

private military companies, private security companies, legitimacy, functions of the state, monopoly on violence, mercenaries, armed conflicts, state institutions, privatization of security, outsourcing

This article is automatically translated. You can find original text of the article here.

Today, the use of private military and security companies is just one example of the privatization of State functions as a widespread trend that has a great impact on public administration and the relationship of State institutions with civil society. Not only does the state impose this or that legal regime on its contractors by its will, but they themselves, the specifics of the functioning of the industry, can set individual trends in legal regulation, influence the nature of the implementation of delegated functions of the state and assess the legitimacy of decisions of the authorities that underlie the actions of contractors. As a result, both public institutions and private companies, to one degree or another, must adapt to the expectations of citizens – voters and taxpayers. 

The development of the idea of privatization of state functions allows us to express concerns about excessive outsourcing [1], which can lead to a "contract state", which in almost any form threatens negative consequences – for the state as a public institution, and for the welfare of society, with the exception of individual beneficiaries of such a system. 

The functions of the state associated with the monopoly on the use of force, including the police and in the field of defense and security, are the most sensitive to sloppy and short-sighted outsourcing. While in the field of military and defense policy, the use of private military and security companies providing the widest range of services is growing, in internal security, many European states supplement the police forces with private contractors, and in some countries (Great Britain, Poland, Hungary) their number exceeds the number of state police officers [2]. In these circumstances, state institutions should not only take care of the legitimacy of their decisions in the eyes of society, but also clearly control – delegating which tasks and functions will not pose a threat to national security and constitutional foundations, and, at the same time, will compensate for those problems that are no longer possible at the current speed of economic and technological development overcome exclusively by the forces of state institutions. 

Every time raising the issue of legal assessment of the activities of private military and security companies, the researcher is faced with numerous white spots both in legislation and scientific thought, and in the facts on which it is necessary to rely. Most of the work is based on the analysis of documents – first of all, regulatory legal acts regulating the activities of private military and security companies in individual States and a small number of international documents, such as the Montreux Document and the International Code of Conduct for Private Security Service Providers. Private military and security companies often operate in conditions of armed conflict and political instability, which does not always allow for a legal assessment of specific facts and events. 

The legitimacy of private military and security companies and the legitimacy of government orders (albeit expressed in the form of contractual obligations), on the basis of which they act, are closely linked through legal norms that companies must obey in order to be able to cooperate with the state as the largest and most profitable customer [3]. The interrelation of these three phenomena and their role in the evolution of the legal assessment of the activities of private military and security companies is the main issue of this work. 

Since private military and security companies claim to implement the functions of the State related to the monopoly on the use of force, their comparison with the police and the armed forces is inevitable. Criminologist Robert Rayner ironically characterizes the legitimacy of law enforcement agencies as "a mystical sense of identification between the police and the people, not the state" [4], based on the myth of the norms and values common to them and the belief that the only function of the police is to use force if necessary to ensure these norms and values. Military personnel in developed countries are similarly identified with a "good" force, since they serve for the benefit of the state and its citizens, and the authorities put a lot of effort into spreading such an opinion through mass media and mass culture, official rhetoric, promoting the ideas of patriotism, service and civic pride [5]

In both cases, the legitimacy of State institutions is based on two basic principles: responsibility to the state power (and through it to the society that elected it) and confidence in motivation based on morality. The first principle means the existence of a normatively fixed, unconditional consent, recognition of the right to power on the part of a regulated or controlled entity. This consent can be supported, for example, by special forms of public control of police bodies on the part of society, the possibility of appealing against the actions of police officers in court, control and supervisory functions of other state bodies, etc. For private military and security companies, this principle is also relevant, since entering into contractual relations with the state as a customer of certain services, they voluntarily confirm their agreement with the established legal requirements. In this case, we are talking about those companies that provide services to states, since only such relations form legitimacy both as a socio-political and as a legal characteristic.  

As for the second principle, based on moral categories, the cardinal difference from state institutions performing functions related to the monopoly on the use of force is that the main motivation for the activities of private military and security companies as commercial organizations is profit-making. It is the civil law aspects of PMSC activities that are the most developed both at the national and international level. The legislation of a number of states, including France, although they allow the activities of PMSCs to a certain limit, try to minimize their "attempt" on the state monopoly on violence. In addition, personal material gain in the conditions of armed conflicts makes the activities of PMSCs related to mercenary activities prohibited by the criminal legislation of many states (including France, the Russian Federation, Croatia, Poland; a number of CIS states: Azerbaijan, Belarus, Kazakhstan, Uzbekistan) and international law. 

In the public consciousness, profit-making is opposed to morality, and the moral basis of the armed forces of the state, in turn, is based on historical memory and a noble goal. While the army relies on past victories to save the motherland – be it the victory of the USSR in the Great Patriotic War or the resistance of the mother country in the War of Independence of the United States or – and future noble goals, activity for profit looks immoral, PMSC employees are seen as prone to socially disapproved behavior, immoral or even criminal tactics and deliberate violation accepted norms [6]. As a result, if an employee of a private military and security company is involved in the deaths of civilians in an armed conflict, both his motivation and the action itself become unequivocally immoral, but if a regular soldier is involved in the same actions, they will be considered more acceptable [5].

In contrast to the principle of the moral basis, which is not suitable for PMSC as an agent that implements, although only partially, the functions of the state related to the use of force, their recognition is not so much by society as by the most significant public institutions – States and international organizations, in particular the United Nations, whose legitimacy is based on its ability to serve as an example in maintaining the wide dissemination of international legal norms. The use of private military contractors by the UN [7], the European Union in missions carried out within the framework of the Common Defense and Security Policy [8] creates a moral basis for their legitimacy for the member states of these organizations. In fact, if the source of legitimacy for the regular armed forces is a direct connection with society, then for PMCs it is mediated by the state as the main source of their formation, activity, and legal status. 

Thus, the legitimacy of PMSC activities is based on the idea that they act in such a way as to respect and strengthen the traditional monopoly of the State on the use of force. It is embodied in the actual legal regulation of the activities of private contractors, its scope and content, the consolidation of the fundamental difference between mercenary groups and private military and security companies, and the willingness of such companies themselves to comply with these legal norms. Undoubtedly, such a close relationship also creates certain risks: by realizing commercial interests, PMSCs can directly or indirectly influence the state's decision on the use of military force. They not only influence the definition of national interests through lobbying, but also create a link between the public and private sectors, which is ripe for political corruption [9].

From the above it can be seen that the legitimacy of the activities of private military and security companies is quite unstable and largely depends on both the specific circumstances and the institution that is the conductor for the work of PMSCs. In this case, we are considering a situation in which power institutions are supposedly legitimate, and the question of legitimacy does not relate to their essence or the order of formation, but to the decisions taken – how it happens, and how its recognition and support by society and the result are interrelated [10]. As a result, the decisions of the authorities should not only be legal and adopted in compliance with the procedure, but also comply with the moral and ethical norms accepted in society, which underlie its system, and also be effective for the purposes for which they are taken. We will not dwell in detail on the characteristics of the legitimacy of political power and political decisions, since all these issues have been repeatedly and in detail considered in various legal and political literature [11],[12],[13]. For further analysis, it is important to note that the legitimacy of decisions taken by government institutions is not identical to their own legitimacy. 

The regulatory framework, legal content and legal assessment of the activities of private military and security companies directly depend both on the legitimacy of the PMSCs themselves as a phenomenon and on the legitimacy of the decisions of the authorities. This leads to significant regional differences in regulatory approaches related to established legal traditions and affects public perception of PMSC activities. Thus, the American researcher M. Ramirez [5] notes the difference in attribution of guilt in situations where regular armed forces and personnel of private military contractors are involved in the death of civilians in an armed conflict. His research showed that society tends to place more blame on the authorities and consider losses less acceptable in the case of involvement of PMSC personnel. The author connects this with the phenomenon of the moral basis of the legitimacy of the army already described above, which is not peculiar to private contractors, while the main blame is placed on state bodies that make illegitimate decisions that lead to negative consequences. 

The legal regulation of the activities of private military and security services has come a long way, and today we can judge how different approaches to such contractual relations were in various historical periods – from the Middle Ages, for which mercenary armies were a matter of course, to the modern world, where most States and international organizations criminalize mercenary activities and implement them with great caution regulation of PMSCs. There are several main approaches to the legal regulation of the activities of private military and security companies, depending on the availability of specialized legislation. A number of States (in particular, Austria and Germany) adhere to the regulation characteristic of commercial companies in general, without developing specialized norms for the private military and security industry. A different approach to regulation is common in decentralized states such as the USA, Switzerland, Italy and some others. In these countries, the legal regulation of PMSCs may differ in different administrative units. The same approach is observed at the supranational level in the European Union, where, on the one hand, private military and security companies are subject to the principles of the common market, on the other hand, supranational rules on arms exports are established. In some states, there is specialized legislation on private military and security companies – Great Britain, Ireland, the Netherlands. A number of European Union States also control the export of training and training services for the use of military technologies. In particular, the Czech Republic, Hungary and Italy require special licenses for any training services related to the use of weapons, and Estonia and Poland also regulate the provision of consulting services for military goods, including "technical support related to the improvement, production, assembly, testing, repair, transportation and storage of military goods or any other related services." In Sweden, "training for military purposes" is allocated to a separate category of licensing [14].

Despite the large number of examples of legal regulation of PMSCs and extensive law enforcement practice in many aspects of their activities, the most vulnerable remains the criminal legal assessment of the actions of personnel of private contractors and the issue of protection of vulnerable categories of persons. Gaps in the criminal liability of personnel of private military and security companies are widely covered in the scientific literature and are associated with factors such as lack of jurisdiction, complexity of the qualification of acts, lack of access to the subject of the crime by the competent authorities [15],[16],[17],[18]. With regard to the problems of legitimacy, I would like to highlight a common feature of the legal regulation of private security, which S. Percy draws attention to [3] – a retrospective approach to lawmaking.   The legislator is not looking for answers to new and promising questions, is not trying to ask promising criteria or suggest the most likely results of the development of the industry. He reacts to a past war, a crisis that has already happened, or even a tragedy. Retrospective norms regulating the "past war" slow down the transformation of the industry and cannot respond to new challenges, which creates a vicious circle: crisis – lengthy proceedings and new regulatory acts – the development of the industry in "free flight" - a new crisis.  As a result, private military and security companies have a huge freedom of action in poorly controlled conditions, and after another unsuccessful (for example, the incidents on Nisur Square in Baghdad and Abu Ghraib prison) attempts to punish them, they return to their activities, while states cannot or do not want to initially establish a more stringent framework for their activities. And although economic sectors almost always develop faster than the legislator has time to react to changes, in this case we are talking about situations that cost and will cost the lives of people caught up in armed conflict. 

The legal assessment of the activities of private military and security companies develops together with the legislation regulating it, law enforcement practice and public policy that forms their legitimacy and indirectly public relations. The principles and trends in the development of international legal discourse regarding the activities of PMSCs have a significant impact [19],[20]. It is centered around the prohibition of violating the exclusive monopoly of the State on the use of force, State responsibility and issues of territorial jurisdiction in the consideration of criminal offenses. 

The use of private military and security companies in modern armed conflicts makes a discussion about their role inevitable, regardless of whether it occurs at the international or national level. A sound and balanced legal assessment of their activities should be the basis of such a dialogue, but it cannot consist only in responding to situations where existing legal norms cannot cope with regulation. The issue of legitimacy, although it is not exclusively legal, but contains political and philosophical elements – a way to broaden the view of the situation for political actors and legislators in order to be able not only to create retrospective norms, but also to establish promising parameters for the development of the industry. 

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A REVIEW of an article on the topic "The activities of private military and security companies: issues of legitimacy and law." The subject of the study. The article proposed for review is devoted to topical issues of regulating the activities of private military and security companies, including issues of compliance with the law of the activities of such organizations. From the point of view of using this institution in various countries, the author raises the question of how to carry out the activities of private military and security companies. As part of the article, the author invites you to a discussion on this topic. The subject of the study was the norms of the legislation of various countries, the opinions of scientists, and the materials of the practice of using the institute in question. Research methodology. The purpose of the study is not stated directly in the article. At the same time, it can be clearly understood from the title and content of the work. The purpose can be designated as the consideration and resolution of certain problematic aspects of the issue of legal regulation of the activities of private military and security companies, including compliance with the law of the activities of such organizations. Based on the set goals and objectives, the author has chosen a methodological basis for the study. In particular, the author uses a set of general scientific methods of cognition: analysis, synthesis, analogy, deduction, induction, and others. In particular, the methods of analysis and synthesis made it possible to summarize and share the conclusions of various scientific approaches to the proposed topic, as well as draw specific conclusions from the materials of practice. The most important role was played by special legal methods. In particular, the author actively applied the formal legal method, which made it possible to analyze and interpret the norms of current legislation (first of all, the norms of foreign legislation). For example, the following conclusion of the author: "There are several main approaches to the legal regulation of the activities of private military and security companies, depending on the availability of specialized legislation. A number of States (in particular, Austria and Germany) adhere to regulation typical for commercial companies in general, without developing specialized standards for the private military and security industry. A different approach to regulation is common in decentralized states such as the USA, Switzerland, Italy and some others. In these countries, the legal regulation of PMSCs may differ in different administrative units. The same approach is observed at the supranational level in the European Union, where, on the one hand, private military and security companies are subject to the principles of the common market, on the other hand, supranational rules on arms exports are established." It is necessary to positively assess the possibilities of an empirical research method related to the study of specific examples of the activities of private military and security companies in a particular case. Thus, the methodology chosen by the author is fully adequate to the purpose of the study, allows you to study all aspects of the topic in its entirety. Relevance. The relevance of the stated issues is beyond doubt. There are both theoretical and practical aspects of the significance of the proposed topic. From the point of view of theory, the topic of determining the legitimacy and legal regulation of the activities of military and security private companies is important and necessary, since there is no serious research in this area, which cannot be correct. The author is right to highlight this aspect of relevance. On the practical side, it should be recognized that certain unified mechanisms of legal regulation in different countries should be developed, which contributed to the improvement of practice in this direction. The practical examples given by the author in the article clearly demonstrate this issue. Thus, scientific research in the proposed field should only be welcomed. Scientific novelty. The scientific novelty of the proposed article is beyond doubt. Firstly, it is expressed in the author's specific conclusions. Among them, for example, is the following conclusion: "The use of private military and security companies in modern armed conflicts makes a discussion about their role inevitable, regardless of whether it occurs at the international or national level. A sound and balanced legal assessment of their activities should be the basis of such a dialogue, but it cannot consist only in responding to situations where existing legal norms cannot cope with regulation. The issue of legitimacy, although not exclusively legal, contains political science and philosophical elements – a way to broaden the view of the situation for political actors and legislators in order to be able not only to create retrospective norms, but also to establish promising parameters for the development of the industry." These and other theoretical conclusions can be used in further scientific research. Secondly, the author offers interesting generalizations of legislation and law of various countries, which in itself can be significant in the context of developing common approaches to the institution in question, as well as contribute to further productive discussions. For example, this applies to the following: "In these countries, the legal regulation of PMSCs may differ in different administrative units. The same approach is observed at the supranational level in the European Union, where, on the one hand, private military and security companies are subject to the principles of a common market, on the other hand, supranational rules on arms exports are established. In some countries, there is specialized legislation on private military and security companies – Great Britain, Ireland, the Netherlands. A number of European Union States also control the export of training and training services for the use of military technology. In particular, the Czech Republic, Hungary and Italy require special licenses for any training services related to the use of weapons, and Estonia and Poland also regulate the provision of consulting services for military goods, including "technical support related to the improvement, production, assembly, testing, repair, transportation and storage of military goods or any other related services." In Sweden, "training for military purposes" is allocated to a separate licensing category. The above conclusions may be relevant and useful for law-making activities. Thus, the materials of the article may be of particular interest to the scientific community in terms of contributing to the development of science. Style, structure, content. The subject of the article corresponds to the specialization of the journal "Legal Studies", as it is devoted to legal problems related to the activities of private military and security organizations. The content of the article fully corresponds to the title, since the author considered the stated problems and achieved the research goal. The quality of the presentation of the study and its results should be recognized as fully positive. The subject, objectives, methodology and main results of the study follow directly from the text of the article. The design of the work generally meets the requirements for this kind of work. No significant violations of these requirements were found. Bibliography. The quality of the literature used should be highly appreciated. The author actively uses the literature presented by authors from Russia and abroad (Hood C., Staff H., Percy S. Reiner R., Krahmann E., Friesendorf C., Kirilenko V. P., Alekseev G. V. and others). I would like to note the author's use of a large number of works by foreign authors in foreign languages, which made it possible to give the study a comparative legal orientation. Thus, the works of these authors correspond to the research topic, have a sign of sufficiency, and contribute to the disclosure of various aspects of the topic. Appeal to opponents. The author conducted a serious analysis of the current state of the problem under study. All quotes from scientists are accompanied by author's comments. That is, the author shows different points of view on the problem and tries to argue for a more correct one in his opinion. Conclusions, the interest of the readership.
The conclusions are fully logical, as they are obtained using a generally accepted methodology. The article may be of interest to the readership in terms of the systematic positions of the author in relation to the issues and problems stated in it. Based on the above, summing up all the positive and negative sides of the article, "I recommend publishing"
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