The Judicialisation of Security Governance: Implications for the Democratic Control of Armed Force

Under the impulse of the proliferation of private military and security companies (PMSCs), we are in the middle of a reconfiguration of European and global security governance. On the basis of a case study of the regulatory framework governing EU-based PMSCs, this text argues that one of the central aspects of this reconfiguration concerns the transfer of regulatory decisions from representative assemblies to judicial bodies. It shows that in the absence of European legislation or of a politically negotiated international treaty on PMSCs, the European Court of Justice has decisively shaped European security governance. In a desecuritization move, the Court has argued that PMSC activity should be governed according to the same rules as other economic sectors. Based on the interpretation of original European Treaties, the Court has severely restricted the possibilities for establishing national political control over the PMSC sector. This sector therefore continues to be governed by legislation that was not intended in the first placet to apply to it. In short, PMSC governance has been judicialized. The text continues with mapping the implications of this judicialization for the norm of democratic control of armed force. It finds that at the core of judicialization lies a shift from political accountability to legal accountability. This means, among other things, that a posteriori accountability replaces a priori control as the main tool for steering the exercise of armed force. Next, because PMSC activity is no longer predominantly controlled by representative assemblies, there is a move to a model of participatory democracy in which market participants replace citizens as the main actors for influencing PMSC governance. Because not all citizens have equal means of participation, most notably because they lack the resources to hire PMSCs or to file complaints to hold PMSCs to account, this might endanger the democratic quality of security governance. The text concludes with formulating some suggestions for ensuring democratic accountability of PMSC activities. First of all, the judicialization of PMSC governance should be compensated by a strengthening of political control by representative bodies, for instance through targeted European legislation of international treaties. Secondly, in order to allow for genuine participatory democracy, opportunities for participating in PMSC governance should be increased.