Commercializing War: Private Military and Security Companies, Mercenaries and International Law

39 Pages Posted: 11 Mar 2009 Last revised: 4 Apr 2010

See all articles by James Thuo Gathii

James Thuo Gathii

Loyola University Chicago School of Law

Date Written: March 31, 2009


This paper addresses the growing involvement of foreign and private military, defense and security firms and mercenaries, particularly in the countries with the least effective control of their often remote and dangerous resource rich territories. Private military and security companies pride themselves as responses to the failure of national, regional and international public governance structures to play effective roles in maintaining peace and security.

This paper shows that international law rules on regulating the use of violence of non-State actors is divided between those cases like terrorism, where the state responsibility has been laid down in mandatory terms by the Security Council. By contrast, the regulation of private military and security companies has not attracted the same kind of categorical obligations on the part of States. What we see then is how the commercialization of violence has created differing responses in international law and institutions to the violence meted out by non-State actors - between those defined as terrorists and are currently stringently regulated, on the one hand, and those which define themselves as providing security, order and other ancillary services, who are currently not as stringently regulated under international law.

In addition, this paper shows a divide between vigorously pursuing individuals responsible for commission of crimes against bodily integrity in the international criminal context, and much less of a focus on the economic actors who are often complicit as accessories to those crimes.

The paper argues in favor of tougher regulatory controls through new international legal framework and national standards backed up by a concurrent multilateral commitment to dealing with mercenaries as decisively as with other non-State actors who wield violence.

Suggested Citation

Gathii, James Thuo, Commercializing War: Private Military and Security Companies, Mercenaries and International Law (March 31, 2009). Albany Law School Research Paper No. 49, Available at SSRN: or

James Thuo Gathii (Contact Author)

Loyola University Chicago School of Law ( email )

25 East Pearson
Chicago, IL 60611
United States

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