In depth
The rule of law, the market and armies: conceptual incompatibility and legal challenges
Helena Torroja Mateu
A consideration of the legal challenges involved in the phenomenon of private military and security companies leads us to various state and social scenarios1. These companies are a phenomenon promoted by a small but significant group of Western states (USA, UK, etc.); they are in turn tacitly accepted by another important group of (also Western) states (those in the European Union, including Spain, have not openly opposed these companies, and have passed minimal and tenuous international soft law regulation2). Meanwhile, thery are allowed under the jurisdiction of other states (Afghanistan, Iraq, Libya) or suffered by the population and society of states that cannot control the exodus of personnel from their armies or who are not strong enough to stop it (Fiji, South Africa, Chile, Somalia, etc.). This is true to such an extent that the expression PMSCs hides a a major casuistry, with countless legal ramifications.
However they are addressed, their response requires prior consideration: a serious matter such as this one – the privatisation of the legitimate use of armed force - must be considered from a global, universal perspective, rather than based on ad hoc sectorial and partial approaches. In other words, it should be possible to consider the issue objectively, avoiding the relativism of each state, each society, or each company. Only a proper approach to the issue will enabled the problem to be addressed with the appropriate legal responses.
In my view, the underlying legal issue is: are democracy and the trading of legitimate use of force compatible? As it is readily apparent, there are three concepts around which this consideration is based: democracy, the market and the army. It is well-known that the first of these implies other basic ideas - a democratic system with a separation of powers, the rule of law and respect for human rights. With this in mind, some guidelines for resolving the question follow.
The form of political organisation that is the State, emerged in Europe in the late Middle Ages, and was finally consolidated in the first half of the seventeenth century, after the end of the Thirty Years' War. One of its cornerstones was the centralisation of the legitimate use of force. This meant that the basic notion of sovereignty (ad intra and ad extra), was based on the exclusiveness, plenitude and autonomy of competences regarding the legitimate use of force, as well as other elements. The use of mercenaries was last openly rejected, leading to the creation of armies, which were always subject to the sovereign. From this perspective, today, democracy involves the submission of the army to civilian authorities, which is directly related to the following point.
It should also be remembered that the Western European-inspired State gave legal status to the protection of human rights. The pillars for respecting them have since been based on the submission of the power of coercion that the executive branch possessed (by the use of force by police and the army) to the legislative and judicial branches. Human rights and the centralisation of the legitimate use of force thus became inseparable ideas.
It is at this point where the question arises as to whether the trade in the legitimate use of force is compatible with respect for and protection of human rights. When we talk about privatising legitimate armed force, we are acknowledging the right to form private companies with products or services that involve the possession and use of military arms, that are freely available to anyone who wants it for a certain price, which will be established by the market. It seems obvious that this violates the principle of subjecting the power of coercion to the legislative and judicial branches, or that its submission will at least be difficult, as legitimate coercion will be arbitrated by the invisible hand of the market. As a result, weakening the centralisation of coercive power goes directly against the enjoyment of human rights.
The issue can be considered from other perspectives, or the conceptual exposition of the underlying problem may be considered exaggerated. However, any State which in its legal arrangements includes the constitution, acquisition or work of service companies that trade in the legitimate use of military force must accept that it is opening the way to the legalisation of the new mercenaries, the new privateers, of the twenty-first century.
In conceptual terms, the privatisation of the legitimate use of force can only be seen as a direct attack on the foundations of the modern state and the principles of democracy; the concepts of democracy and trading of the legitimate uses of armed force are therefore difficult to reconcile.
However, this is now the reality in some States and the trend seems to be on the increase, and the international community is silent. As a result, it is no longer possible to halt the phenomenon, but there must at least be some hope of regulating it internationally, and to impose limits and obligations on States when they delegate powers to and / or hire these companies. This initiative must come from the international arena and that is the great contemporary legal challenge which faces us.
Indeed, the current process towards international legal regulation in the strictest sense (hard law) of state practices with regard to these companies is based on the efforts of the United Nations Organisation's Working Group on the use of mercenaries, which is currently chaired by José Luis Gomez del Prado. The Working Group has written a possible draft convention for the regulation, monitoring and supervision of the activities of private military and security companies, which was submitted to the Human Rights Council in September 2010. From there, an intergovernmental group with an open remit must continue the Group's work, negotiating and adopting an international treaty on this issue. It is too early to reach a verdict on the future, but opposition from the the United States, the United Kingdom and the European Union suggests that it will be difficult for the project to succeed3.
The greatest legal challenge that arises is therefore for States to agree to establish a minimum level of international obligations to limit the scope of this privatisation (prohibiting the privatisation of inherently governmental functions); which also limit the work of these companies (establishing national regulation and control obligations thereof, and mechanisms for specific judicial sanctions for human rights violations, humanitarian law and other crimes that they commit).
Given the uncertainty about the future of this international regulation, and in view of the doubts regarding our leaders' political responsibility, our last resort is to mobilise to demand that our Western states, which devised democracy and say that they lead the way in implementing its principles, must at least define its boundaries, if they do not want to prohibit it completely. The baton has therefore been passed on to civil society.
1. These considerations reflections are from the perspective of companies that provide heavily armed protection services, i.e. services normally provided by armies. For the moment, we will leave the (police) work of the private security companies covered by many legislations, including our own, to one side. (Back)
2. Initiatives such as the Montreux document on pertinent international legal obligations and good practices for States related to operations of private military and security companies during armed conflict, adopted in Montreux on September 17, 2008, or the International Code of Conduct for Private Security Service Providers, adopted in Geneva on November 9, 2010, although the process is not yet complete. (Back)
3. For a detailed commentary on the Draft International Convention and an overview of soft law initiatives , see Gomez del Prado, JL, and Torroja Mateu, H., Hacia la regulación internacional de las empresas militares y de seguridad privadas (Towards the international regulation of private military and private security companies), Tribuna internacional CEI, Marcial Pons, 2011. (Back)