A PROJECT REPORT ON

Privatization of Armed Conflict

Submitted to:
Mr. Mohd. Atif Khan
(Faculty, Public International Law)
By:
Pranav Vaidya
Roll no:-117
Semester-IV C

Date of Submission: 18th February 2015

Hidayatullah National Law University
 Declaration

I, Pranav Vaidya, hereby declare that, the project work entitled, “Privatization of
Armed Conflict” submitted to Mr. Mohd. Atif Khan, Faculty, H.N.L.U., Raipur is
record of an original work done by me under the guidance of Mr. Mohd. Atif Khan,
Faculty, Public International Law, H.N.L.U, Raipur.

Pranav Vaidya

Semester IV

Roll No. 117

Section C
 ACKNOWLEDGEMENTS

First & foremost, I take this opportunity to thank Mr. Mohd. Atif Khan,Faculty,
Public International Law, HNLU for allotting me this challenging topic to work on.
He has been very kind in providing inputs for this work, by way of suggestions and
by giving his very precious time for some discussion. Hence I would like to thank
him for all his cooperation and support.

I would also like to thank the University Administration for equipping the
University with such good library and IT lab.

Last but not the least; I would like to thank my friends for having a wonderful
debate and discussion in the hostel, and hence creating a knowledge base for
various aspects of this society as well as our education.

Pranav Vaidya

Roll No.-117, Sec-C

Semester- IV
Contents:

 Declaration
 Acknowledgements.
 Objectives.
 Research Methodology.
 Introduction.
 Section I- The Right to Redeem.
 Section II- The Right of Foreclosure or Sale.
 Section III- Differences under English Law and Indian Law.
 Conclusion.

\
Research Methods:
Under this project report, I will be dealing with the issue of Armed Conflict at
International level and put forward the need for its Privatization. Then, by
analyzing both, I will elaborate the effects which it will create upon the activities
and relations of different countries.

Research Objective:
The main objectives behind the research project are:

1. To understand & develop the concept of Armed Conflict.

2. To understand the need for Privatization of Armed Conflict.
3. To put forward the effects of Privatization upon the relations & policies of
different countries in the world.

Methodology:
This projects work is based on the descriptive & evaluative approach as it requires
a deep study of the topic followed by thorough description. It is based on
secondary sources, i.e., books and other sources.

Websites, dictionaries and articles have also been referred.

Research Question:
Does the Privatization of Armed Conflict in the first place in itself is necessary at
all? And if at all, the armed conflicts have been privatized, what will be the results
of privatizing armed conflicts?

Hypothesis:
In this project of mine, I will be dealing with the concept of Privatization of Armed
Conflict. According to my understanding, this concept came into picture from Jus
ad Bellum, which means the concept of war i.e. to say, the use of force by some
existing armed group which is engaged in an act of aggression or fighting with
some other armed group. Armed conflicts have been understood as a formal
declaration (between states or within the states, i.e. internal warfare like that of
civil wars).
So, these armed conflicts have been one of the potential threats to the mankind,
which was even witnessed in the form of world war-I & II, whose effects are
visible even today, when we consider the case of Japan.

But, there remains a certainty that someday, there will be another world war which
will lead to the end of mankind. So by introducing Privatization upon these armed
groups or states at international level, things might take a different way. With the
introduction of United Nations charter in 1945, things have become completely
different altogether.
Mode of Citation:
As per the latest trends, I will be following the 19 th edition of the Bluebook
(published by Harvard University).

Scope of Research:
As the topic ‘Armed Conflict’ is a vast area of study, dealt separately under
International Humanitarian Law, I will be limiting my research to the basics of
Armed conflict at international level; what it is and how its privatization is going to
change the policies and relations of countries at international level.
 Section-I

Understanding Armed Conflict

“The mercenaries and auxiliaries are useless and dangerous, and if anyone
supports his state by the arms of mercenaries, he will never stand firm or sure, as
they are disunited, ambitious, without discipline, faithless, bold amongst friends,
cowardly amongst enemies, they have no fear of God, and keep no faith with men.”
— Machiavelli, the Prince

Till the present point of time, there hasn’t been an instance where, a concrete
definition of Armed Conflict has been laid on. Though, the Geneva Conventions of
1949 and their additional protocols, as well as various other conventions have tried
to come up, but they weren’t able to bring a clear definition of Armed Conflicts.
According to Gabor Rona1, the following factors are necessary to be considered as
an Armed Conflict:

 Ratione Personae (Identification of Parties).

 Ratione Loci (Identification of territory on which the conflict is fought).
 Ratione Materiae (Relationship of events to an identified conflict).
 & Ratione Temporis (Identification of the beginning and end of the conflict).

If these characteristics are present, then it will be considered as an Armed Conflict.

While according to Jinks2,he concentrated on the fulfilment of 2 considerations:

 The conditions pose an aggravated threat to core humanitarian values.

 The state party to the hostilities considers it as an Armed Conflict.

1 . G. Rona, Interesting Times for International Humanitarian Law: ‘Challenges from the war on terror’ (2003) 27.
2. Yale Journal of International Law 32.
So, on the basis of the above conditions, one can identify that a terrorist attack
amounting to threat will not be considered as an armed conflict. But taking these
definitions will on the other hand , will be considered to be an attempt to modify
the principles laid down in The Geneva Conventions of 1949, as well as the
additional protocols which came up in 1977.

Finally, the majority of authorities have agreed to a common conclusion that at

least 4 elements need to be present for a conflict to be considered to be an armed
conflict:

 Firstly, the parties to the conflict must be identifiable and should have a
certain degree of organization.
 Secondly, hostilities must have met a minimum level of intensity beyond
‘mere acts of banditry or unorganized insurrections3’.
 Thirdly, the beginning and the end points of the conflict must be cognizable.
 Fourthly, there may be territorial parameters.

Identification of Parties:

In International Law, as the identification of parties is concerned, an international

armed conflict takes place between states4. A party to an armed conflict generally
means ‘armed forces or armed groups with a certain level of organization,
command structure and, therefore the ability to implement international
humanitarian law’. This includes individuals making up an organized and
hierarchically structured group, such as a military unit or armed bands of irregulars
or rebels. According to the International Criminal Tribunal of Yugoslavia, armed

3 . A kayesu (Judgement) ICTR-96-4-T (2 september 1998).

4 . Article 2, Geneva Conventions.
conflicts must possess some degree of organization. So on the basis of this, even
certain terrorist organizations might also fulfil the condition.

Connection to Territory:

In the case of International armed conflicts, the territorial sovereignty of a country

is breached or violated by a military act of another sovereign country. An example
can be taken of Liberation Tigers of Tamil Eelam (LTTE) which has been waging
a secessionist campaign against the Sri Lankan government in order to secure a
separate state for the Tamil majorities living in the north and east of Sri Lanka.
 Section-II

Privatization of Armed Conflict

The privatization of conflict is not a new phenomenon; it was widely practiced

until the 1800s. In its ideal form, the state guarantees the security of its citizens,
both internally and externally. This is the core of what is traditionally called the
state monopoly on force. In the wake of the growing globalization and trans-
nationalization of the twenty-first century, the state has not only lost its dominant
position in the world economy but has also seen its preeminence as an actor in the
use of force diminished. The states had lost its dominance as different forms of
privatized violence; from warlords, militias, and rebels to private military and
security companies (PMCs and PSCs) have engaged in armed conflicts. This issue
is particularly relevant in low-capacity states. One of the many challenges in such
countries is persistent insecurity. In weak and failing states and in many post-
conflict situations, the state typically lacks the capacity to protect its monopoly on
force. This inability to provide security is a defining criterion of the fragility of
states.
While the use of private military corporations in various forms was both attractive
and useful for states, several forces also converged to cause their
suppression.Tobeginwith,thegrowingstructureofstatesandtheirarmiesmade the use
of private military corporations unnecessary or unattractive. The increased use of
more technologically sophisticated weapons required dedicated, full-time
professionals who were well trained. Training demanded constant drilling to
master the movements required to individually fire a weapon and maneuver
information on the battlefield. All this necessitated a degree of discipline not found
previously in any private military corporation. At the same time, state
bureaucracies had developed to a degree where it was possible to recruit, train,
pay, and maintain a full-time force. These two trends made the use of private
military corporations an increasingly less desirable option for states.

As states matured and the concept of sovereignty developed, legitimacy was

defined more and more by the ability of states to protect and control their citizens
at home and abroad. An immediate result was the withdrawal of the right of private
citizens to conduct private war. The army and navy became the primary
manifestation of a state’s legitimacy and prestige as the sole holder of the
legitimate means to enforce order. Control not moral or legal problems was thus
the major reason that states began to move from employing privatized means to
relying on governmental militaries as their preferred means for wreaking violence.

State-building efforts and privatization of military and police functions are two
dominant trends for coping with insecurity in Afghanistan. The privatization trend
in the country in reality a combination of the bottom-up and top-down approaches
illustrates a dilemma that emerges less drastically in many other countries. The
worsening security situation, a result of insurgencies, is countered both by
deploying more military and police forces and by hiring private security actors in
the tens of thousands. For the development and humanitarian community to work
effectively, a minimum level of security is required. This security cannot presently
be provided by the military or police personnel of the Afghan and foreign
governments. To meet this shortfall, many development agencies and NGOs have
turned to armed private military contractors. Afghanistan is a boomtown for
privatized security. Big and small companies as well as individual war adventurers
quickly realized that Afghanistan’s war offered ample opportunities to make
money.
Large foreign companies and Afghan clan leaders run many of these private firms.
No one really knows how many of these contractors—often labeled as
mercenaries—are actively working for the Afghan government in Kabul, the armed
forces at the frontline, development and humanitarian organizations in logistics,
and those who can afford personal protection. Many of the contractors are armed
and dressed in self-styled company uniforms. The oversight and control
mechanism of these companies is a problem. A 2010 U.S. Congressional Research
Service report found that regulations governing PSCs are only enforced in Kabul
because “outside Kabul there is no government reach at present and local
governors, chiefs of police, and politicians run their own illegal PSCs.” It is a
questionable premise that sending more troops and police to stabilize Afghanistan
or to create reliable state institutions will be successful. Military actions are usually
followed by new insurgencies. The disarmament of non-state actors—a
precondition to the creation of a state monopoly on force—was not successful
there in the past. Mujahedin leaders, warlords, and other local leaders have
privatized the state security apparatus. Their power rests on their inclusion in the
central government, income from the war economy—as large amounts of aid
disappear through corruption from which the warlords and even the Taliban
profit—and the drug trade.
 Section-III
Effects of Privatization of Armed Conflicts upon Nations

Along with this has come speculation about its consequences for states and global
governance. Optimists have argued that privatization is likely to yield benefits for
states. Private organizations will deliver new security services cheaply and flexibly
in ways that will enhance state security and thus global governance. Pessimists
have argued that privatization will be costly to states eroding accountability and
enhancing conflict and thus challenging global governance.
In different instances private security can both enhance and undermine the security
of individual states. It can also enhance or undermine the integration of violence
with the values we associate with the international community, democratic
principles, human rights, and the rule of law. In each case, however, it changes the
mechanisms by which force is controlled and thereby redistributes power over the
control of violence spreading that power differently within states and often
enhancing the influence of persons and groups outside the state. Privatization’s
clearest effects are to enhance the importance of market mechanisms and diffuse
control to a wider variety of actors.
These changes, though, do not erode states’ control of violence so much as pose
new tradeoffs to states. Those states that most effectively harness PSCs to pursue
their security also open themselves up to the greatest changes in their political
processes for controlling violence. The United States, for instance, has used market
mechanisms to its advantage. The purchasing power of the United States in
security services causes PSCs with which the U.S. contracts to attend to U.S.
wishes in their other contracting decisions and generally follow U.S. regulatory
regimes. The private provision of security services, however, causes the foreign
policy process to work differently in the United States, enhances the power of the
executive over the legislative branch, and opens new avenues for PSCs to affect
foreign policy decisions. South Africa has stood on principle against the
outsourcing of security services in its military, but has effectively ceded influence
over PSCs even those that draw from retired South African soldiers in return.
South Africa has been unable to put its firms out of business, but PSCs have
ignored its regulatory structure, moving underground or offshore to meet the
demand of those states and non-state actors with purchasing power. The South
African decision, though, has preserved its political processes, providing little
opening for the interests of the private security industry to affect foreign policy
decisions.

Issues have also arisen with respect to the functioning of international

organizations. For instance, though some have suggested that PSCs could help
make the United Nations (UN); UN peacekeeping, in particular function more
effectively5, there are hints that private security could just as easily provide a
platform that competes with the UN as a tool for ‘‘international’’ force. Rather
than being a tool for enhancing UN operations, then, PSCs may offer tools to
individual states or other actors that can accomplish goals abroad without the
involvement of the UN. This could be seen as avoiding sticky political debates or
taking quick action when that is required. By offering a tool that works in an array
of different forums, private security may reduce the need to work through the
political processes that states have set up through multilateral institutions. The fact
that market mechanisms for controlling violence suggest different routes of action
and the diffusion of control pulls actors in different directions has complicated the
operation of existing institutions. This need not, however, portend the unraveling
of control. New innovations may spring up. One could point to the

5 . Shearer, 1998; Brooks, 2002.

Chad/Cameroon Pipeline deal as one of these, rather than facing their dilemmas
alone, oil companies enlisted the aid of activists and international financial
organizations to avoid channeling oil money into the corrupt governments of Chad
and Cameroon. The result is an unprecedented intervention in the politics of Chad
and Cameroon not by other states, but by a variety of transnational actors allied
with functionally based international institutions6.

6 . DUFFIELD, M. (2001) Global Governance and the New Wars: The Merging of Development and Security. New
York: Zed Books.
 CONCLUSION

The privatization of security has enhanced the importance of market mechanisms

and diffused control over violence. The fact that market mechanisms suggest
various routes of action and the diffusion of control pulls actors in different
directions has complicated the operation of existing institutions not only of states,
but also of international organizations, NGOs, and the market itself. The
privatization of security promises change in the practice of sovereignty. We should
expect this change to affect not only states, but also the markets and societies that
have built themselves around the state system.
As mentioned in the hypothesis that the privation of armed conflict might bring up
the desired changes so that the issue could be sorted out, once and for all. But the
changing policies with regard to different governments as well as the international
organizations, it seems that privatizing the armed conflict would be an act of us
placing the lives of the mankind in danger. On the other hand, it does provide
certain benefits which cannot be ignored all at once.
 Bibliography

 DUFFIELD, M. (2001) Global Governance and the New Wars: The

Merging of Development and Security. New York: Zed Books.
 Andrea Bianchi & Yasmin Naqvi (2011) International Humanitarian Law &
Terrorism. Oxford & Portland; Hart Publications.
 Geneva Conventions of 1949.