The Non-state Authorization of Armed Force: When is it right to hire Private Military and Security Companies?

Under the impulse of the proliferation of private military and security companies (PMSCs), we are in the middle of a reconfiguration of global security governance. In response to the perceived legal impunity of PMSCs, regulatory initiatives such as the Montreux Document and the International Code of Conduct for Private Security Service Providers’ Association help raise the standards of this industry. These initiatives remain a work in progress and in order to arrive at a conclusive regulatory framework they need to address more substantive questions such as which private sector clients can legitimately hire PMSCs and for which purposes this can happen. Formulating an answer to these questions will in turn help forward the negotiations on the United Nations Draft Convention on Private Military and Security Companies, which has currently stalled on the inability to reach an international agreement on this issue. In response, this article clarifies under which circumstances it is justifiable for non-state clients to hire PMSCs in complex security environments. In light of the above, its purpose is twofold. In first instance, it draws on just war theory for considering the conditions under which non-state bodies can legitimately authorize the use of force in the international realm. It agrees with recent contributions to just war theory that there is no reason to believe that states should possess a monopoly on the legitimate authorization of force. What is more, legitimate authority should no longer be considered a necessary condition for the use of armed force to be justifiable. Instead, this article argues that non-state clients can hire PMSCs if they satisfy the following conditions. First, PMSCs should only be hired in the absence of better alternatives, including better positioned alternative authorities, for providing human and communal security. Secondly, the activities these non-state clients pursue should be necessary for ensuring peaceful communal life. Thirdly, the PMSC should respect the rules of jus in bello. These criteria offer some guidelines for the subjective judgment of clients and PMSCs on the legitimacy of their operations. This legitimacy increases if this subjective judgment is confirmed objectively, ie. by an independent third party. This brings us to the second main goal of this article. This evaluative function could be taken up by existing international multistakeholder bodies such as the International Code of Conduct Association. To facilitate this, the article concludes with translating the aforementioned conditions into practically implementable rules. These rules can then serve as an indicative list of criteria for judging the legitimacy of a PMSC operation and should ideally be included in existing management standards.