Almanac of law. Issue 16 (2025), pages 281–288.

DOI: 10.33663/2524-017X-2025-16-281-288

Savka O. I.
Conditions and criteria for the legality of damages by employees of private military and security companies in conditions of armed conflict and high-danger zones

The article analyzes the conditions and criteria for the legality of causing harm by employees of private military and security companies in armed conflicts and high-risk areas.

Due to the specifics of military and security services, for the provision of which private contractors are involved, the criteria and conditions for the legality of causing harm by them are based primarily on the right of self-defense, which in armed conflicts and other situations of instability can take on an unlimited nature.

Two main legal regimes for the use of force (respectively, causing harm) by employees of private military and security companies are distinguished: this is direct participation in military operations and self-defense.

Within the framework of the currently existing legislative and law enforcement practice regarding causing harm that claims to be legal, only actions carried out within the framework of self-defense can be considered. Such actions, among other things, can be carried out by individuals within the scope of their official duties stipulated by the contract on the basis of which private military and security services are provided.

It has been found that employees of private military and security companies are not currently subjects of international humanitarian law, which makes their position somewhat precarious in determining the legality of causing harm, since, on the one hand, they do not fall under the protection provided by the norms of international humanitarian law to military personnel, and on the other hand, they are subject to the action of criminal law.

It has been proven that one of the aspects of the distinction between direct participation in military operationsand the right to self-defense is the criterion of the illegality of the initial attack, since self-defense by definition cannot be a response to the lawful use of force.

Three main criteria for the legality of causing harm during the exercise of the right to self-defense by employees of private military and security companies are identified — the legality of the purpose of protection, proportionality, and the illegality of the attack. It has been proven that the factors that influence the recognition of an attack as unlawful do not necessarily create grounds for the use of force as self-defense, that is, for the lawful infliction of harm.

Within the framework of Ukrainian legislation, the issue of the legality of causing harm by employees of private military and security companies should be considered through the prism of circumstances that exclude the criminality of the act established by the Criminal Code of Ukraine.

Criminal-legal assessment of the activities of employees of private military companies and their prosecution for committed crimes are possible on the basis of including employees of private military and security companies in the Criminal Code of Ukraine as a separate category of subjects, which will allow distinguishing crimes and lawful self-defense.

Key words: international law, international humanitarian law, private military and security companies, criminal code, armed conflict, legality, proportionality, illegality, criminal acts.

References

1. Avant D. The Privatization of Security: Lessons from Iraq. Orbis. 2006. Vol. 50. № 2 P. 327–342.
2. Bryden A., Caparini M. Private Actors and Security Governance. Münster: LIT Verlag, 2006. 314 p.
3. Kinsey C. Corporate Soldiers and International Security: the Rise of Private Military Companies. Abingdon: Routledge, 2006. 212 p.
4. Petersohn U. Private Military and Security Companies (PMSCs), Military Effectiveness, and Conflict Severityin Weak States, 1990–2007. The Journal of Conflict Resolution. 2017. Vol. 61. № 5. P. 1046–1072.
5. Wing I. Private Military Companies and Military Operations. Duntroon, A.C.T.: Land Warfare Studies Centre, 2010. 61 p.
6. Horovenko V., Tyutyunnyk V. Private military companies: international experience and possible ways of its implementation in Ukraine. Science and Defense. 2013. No. 3. pp. 32–39.
7. Kyrychenko S. The role of private military companies in military conflicts. Center for Military-Strategic Research. 2021. No. 1(71). Pp. 12–17.
8. Kohan G. Legal issues of private military companies: international aspect. Legal Sciences. 2020. No. 2. Pp. 190–200.
9. Lindsey Cameron, Vincent Chetail. Privatizing War: Private Military and Security Companies under Public International Law. Cambridge University Press, 2013. Р. 455.
10. Judgment of the Court of 18 March 1980. SpA Ferriera Valsabbia and others v Commission of the European Communities. Concrete reinforcement bars. Joined cases 154, 205, 206, 226 to 228, 263 and 264/78, 39, 31, 83 and 85/79.
11. ICJ, Legal Consequences of the construction of a wall in the occupied Palestinian territory. Advisory opinion. 9 july 2004, para 106. URL: https://www.icj-cij.org/files/case-related/131/131- 20040709-ADV-01-00-EN.pdf
12. Cameron L. The Privatization of Peacekeeping. Cambridge University Press, 2017. Р. 216.
13. Lindsey Cameron, Vincent Chetail. Ibid. cit. P. 469.