All for the good cause of humanitarian protection: A public or private security direction?

(1)

All for the good cause of humanitarian protection:

A public or private security direction?

Leiden University – Faculty of Governance and Global Affairs

Institute of Security and Global Affairs

Master Thesis Crisis and Security Management

Program: MSc Crisis and Security Management

Student: Eva van Halem, BA

Student Number: s1501909

Date of Admission: 13 January 2019

Subject: The Employment of Private Military and Security

Companies in Peacekeeping Operations

Word count: 20.090

Thesis Supervisor: Dr. Eamon Aloyo

(2)

2

ABSTRACT

The purpose of this research is to investigate the suitability of private military and security companies (PMSC) to be employed in a peacekeeping operation in Yemen in order to make future recommendations and contribute to the improvement of UN policies on this.

In the first part the problem about humanitarian interventions and who should intervene is presented. This is followed by a discussion of the used research methodology and an explanation of the normative argument including deductive reasoning to come to a

conclusion. The third part consists of a necessary theoretical framework that discusses the responsibility to protect, just war theory and privatization of security. It also provides a brief overview of the Yemeni war and shows empirical evidence of cases with PMSC involvement. Following this, the analysis will be presented in chapter four. In this chapter, three premises have been stated that provide a detailed look into key elements of jus ad bellum and jus in

bello, military effectiveness and the UN in combination with the private security sector.

The results suggest that private security forces tend to score higher in terms of effectiveness, skill, efficiency and resource quantity and quality as well as are able to adhere to just war principles. By taking this into account, this thesis argues that PMSC’s should have the right to act militarily in Yemen to protect the population from mass atrocities. This discussion is presented in the last part of this research, chapter five.

Keywords: Just war theory, military effectiveness, private security forces, privatization, responsibility & accountability, peacekeeping operations

(3)

3

LIST OF FIGURES

Figure 1. Countries where PMSC’s have been active, up until 2003 ... 24

Figure 2. Internal wars with/without involvement mercenaries ... 29

Figure 3. Number of contracts in OIF in relation to US troops ... 30

Figure 4. Answer survey; firsthand knowledge of PMSC’s failing to coordinate ... 49

LIST OF TABLES

Table 1. Operationalization ... 14

Table 2. Collection of data and sources ... 16

(5)

5

LIST OF ABBREVIATIONS

CoESS Confederation of European Security Services

DoD Department of Defense

DoS Department of State

DPKO Department of Peacekeeping Operations

EU European Union

G77 Group of 77

GAO Government Accountability Office

GCC Gulf Cooperation Council

IASMN UN Inter-Agency Security Management Network

ICISS International Commission on Intervention and State

Sovereignty

ICoC International Code of Conduct

IHL International Humanitarian Law

MINURSO United Nations Mission for the Referendum in Western Sahara

MINUSCA Multidimensional Integrated Stabilization Mission in the

Central African Republic

MINUSMA Multidimensional Integrated Stabilization Mission in Mali MINUJUSTH United Nations Mission for Justice Support in Haiti

MPRI Military Professional Resources, Inc.

MONUSCO United Nations Organization Stabilization Mission in the

Democratic Republic of the Congo

NAM Non-Aligned Movement

NATO North Atlantic Treaty Organization

NGO Non-Governmental Organization

OCHA UN Office for Coordination of Humanitarian Affairs

OEF Operation Enduring Freedom

OIF Operation Iraqi Freedom

PMC Private Military Company

PMSC Private Military and Security Company

PSCVID Private Security Company Violent Incident Dataset

(6)

6

R2P The Responsibility to Protect

SOF Special Operations Forces

SSTR Stability, Security, Transition, and Reconstruction

UAE United Arab Emirates

UN United Nations

UNAMA United Nations Assistance Mission in Afghanistan

UNAMID United Nations/African Union Mission in Darfur

UNDOF United Nations Disengagement Observer Force

UNDSS United Nations Department of Safety and Security

UNFICYP United Nations Peacekeeping Force in Cyprus

UNIFIL United Nations Interim Force in Lebanon

UNISFA United Nations Interim Security Force for Abyei (Sudan)

UNMIK United Nations Interim Administration Mission in Kosovo

UNMISS United Nations Mission in the Republic of South Sudan

UNMOGIP United Nations Military Observer Group in India and Pakistan

UNSC United Nations Security Council

UNSMIL United Nations Support Mission in Libya

UNSMS United Nations Security Management System

UNTSO United Nations Truce Supervision Organization

US United States

(7)

7

1. INTRODUCTION

1.1 Problem outline

Long before the establishment of the United Nations in 1945, state’s getting involved in each other's affairs based on humanitarian grounds has been a matter of discussion. Until this day, the only thing that is certain is that there is little to no consensus. The literature on topics as humanitarian intervention and the responsibility to protect is huge and there is an extremely wide range of opinions on intervening in a conflict; when this should be done, if ever, and who this should do, how, by what means, and so forth.

In his book Humanitarian intervention and the responsibility to protect: Who should

intervene? James Pattison questions who should intervene when there is a humanitarian crisis

that requires action; “should we prefer intervention by the UN, NATO, a regional or sub regional organization, a state, a group of states or someone else” (Pattison, 2010, p. 7)? This research is generally based on the question who should intervene in a humanitarian crisis as there will be analyzed what the possibilities are for private security actors1. As with this question who should intervene, subsequently there is the question around the involvement of private military and security companies (PMSC’s). “Since the Cold War, both demand for and supply of private military and security services has grown” (Avant, 2018, p. 353)2

and they have become “increasingly involved in armed conflicts” (Petersohn, 2017, p. 1046). There is a growing amount of private security actors present in the operating field alongside UN troops, but this “increasing tendency of UN peacekeepers to work in partnerships with non-UN security forces call for revisiting of this complex relationship” (Labbé & Boutellis, 2013, p. 541). As the two forces are inherently different from one another, it is necessary to analyze the principles of peacekeeping and humanitarian intervention that need to be adhered to when conducting an intervention. The three basic principles of (1) “consent of the parties involved in conflict, (2) impartiality, and (3) non-use of force except in self-defense of the mandate and are largely seen as the basis for the legitimacy, credibility and security of UN peacekeepers” (Labbé & Boutellis, 2013, p. 541). The problem here is that these principles are not always thought to be compatible with the private security sector. Therefore, it is important if not necessary for this research to analyze the just war theory, as these principles

1

Private security actors, -forces, -sector and PMSC’s etc. are used intertwined, however all referring to the private actors/entities/firms in a conflict that are hired and provide (international) services that are traditionally provided by national militaries.

2_{Unfortunately, there is little to no factual data about these developments in the private security industry. The}

data that does exist is either not accessible, only about US private forces, forces that are employed in either Iraq or Afghanistan, or data only available from around 2007 or 2008. See Appendix 1 for the found available data of various statistics about the private security sector.

(8)

8

that have been stated before raise the question of morality, which is a crucial topic throughout this research. Other concepts that will be analyzed are for example just cause, intention and sovereignty. These concepts belong to the principles of the just war theory; a theory that will elaborately be explored throughout this research to see whether it is compatible with the private sector. Generally, private security actors tend to score quite low on moral aspects, while in case of a humanitarian intervention, it has always been an important principle that the intervener has a humanitarian motive and intention (Pattison, 2010, p. 7). The challenge here is how to determine when and where and under what circumstances private security forces can, or even should be, employed.

I will examine the case of Yemen considering the involvement of the PMSC’s in its ongoing war. While the wars in Iraq, Libya and Syria received an enormous amount of attention worldwide, this was and still is not the case with Yemen. Since 2015, there has been a

persistent conflict between the incumbent government and the Houthi militia including allies. However, the civil war has been ongoing for several years, but it seems that the international community is still unsure of a way to resolve it. With this research I will analyze whether the situation in Yemen is ‘suitable’ for the employment of PMSC’s.

The aim of this research is to build further upon the normative question around humanitarian intervention and whether private security actors should also have the responsibility to protect and thus the right to legitimately use violence to protect the population. This research will be based upon the core principles of humanitarian intervention and the just war theory with the assumption that private military and security actors should be able to follow the principles of

jus ad bellum and jus in bello. The main argument in this research is based upon the just war

theory and the just causes of fighting war. Instead of using the just war theory as a framework to focus on the behavior of nation states, this research aims to apply the theory to the conduct and way of operating of private security forces in the current ongoing conflict in Yemen. Through empirical evidence of past conflicts, where we have seen the engagement of private security actors, and the set premises that help to analyze the behavior and conduct of PMSC’s regarding the just war principles, the normative argument of this research implies that if private security forces are able to adhere to the jus ad bellum and jus in bello principles during a conflict while at the same time prove to achieve a greater level of effectiveness than their UN counterparts or local forces, PMSC’s should be allowed to use violence to be able to protect targeted citizens in a humanitarian intervention. The following premises will be stated throughout the analysis to determine how much of the argument proves to be true and will

(9)

9

hold up in practice: (1) PMSC’s can adhere to just war principles just as UN peacekeepers can. In this part, the just war principles, both jus ad bellum and jus in bello will be

investigated and illustrate how it can not only be applied to nation states, but also to non-state actors such as PMSC’s. (2) Private security forces can at least be as effective as UN

peacekeepers in Yemen, where the effectiveness of PMSC’s in prior conflicts will be analyzed based on integration, responsiveness, skill and material resources and see how this can be applied to Yemen. (3) If there will be a humanitarian intervention in Yemen which should be according to just war theory, the party that will likely have/bring the most benefits ought to be employed in Yemen. This part will investigate the comparison between private security forces and UN peacekeepers. The conclusion should logically follow from these three premises and will be discussed in the last chapter of this research.

1.2 Research question and sub questions

After the initial analysis and research of the available documents and data a research question has been developed, which will be: Should private security forces have the right to act

militarily in Yemen to protect the population from mass atrocities?3

The aim of this question is to form a normative argument through deductive reasoning where the conclusion would follow from the stated premises. In this way, there will be analyzed through different principles whether PMSC’s should have a right and responsibility to protect the Yemeni population either never, under certain circumstances or if this should always be the case.

In order to answer the stated research question, several sub-question will be kept in mind throughout the analysis to help guiding the premises.

 Is the concept of R2P only compatible with states?

 To what extent is R2P accepted within international society?

 Can the just war theory tradition include the private security sector?

 How important is it that an intervener is effective and what does this mean in practice?

1.3 Academic and societal relevance

The Arab Spring has quickly turned into a so called ‘Arab Winter’ and after Libya and Syria the world has witnessed yet another humanitarian crisis in Yemen starting from officially

3_{Mass atrocities here include crimes against humanity, war crimes, ethnic cleansing and genocide (Aistrope et}

(10)

10

2015 onwards. As the war proliferates, it seems like the international community is unsure what to do about it exactly and the question louds why the UN is unable to bring peace to Yemen. Thousands if not millions of people’s lives could depend on whether there will be an intervention. Over two million people are already displaced and more than 20 million are in need of humanitarian aid as they face the risk of starvation or deadly diseases (UN, 2018). Although there is an extensive amount of literature and research already done on the topics of humanitarian intervention, the responsibility to protect and the just war theory, this research aims to build a bridge between these concepts and the private security sector. Many of the existing traditional literature tend to focus on states in combination with just war theory, while research on just war theory in combination with PMSC’s is very scarce (Baker & Pattison, 2012; Dunigan, 2011; Fitzsimmons, 2015; Pattison, 2008; Ralby, 2015). Moreover, the overwhelming majority of the literature that does apply just war theory to PMSC’s almost solely pays attention to the principles of jus ad bellum without incorporating too much of jus

in bello, which is arguably as important. In the following chapters, these concepts will be

explored in detail.

The goal of this research is not to encourage or advocate for the armament and employment of private security actors. Rather, it aims to look at PMSC’s from a different and perhaps more objective perspective regarding just war theory and discover the possibilities these actors and/or companies can have. In order to do this, this research further explores the ongoing debate about humanitarian intervention and who should have the right to intervene. The ultimate goal would be to contribute to improve policies regarding humanitarian

intervention based on the findings in this research and influence policymakers about the rules and regulations for PMSC’s. Besides, I want to contribute to filling the gap of the existing literature on PMSC’s and just war theory.

The United Nations have used private security forces before and has various partnerships with non-governmental agencies and private agencies (Fitzsimmons, 2017; Labbé &

Boutellis, 2013; UN, 2018). The accountability and regulation amongst PMSC’s however are still a problem. But by improving these through policies and strict control, it could make a difference in how PMSC’s are viewed and how they could be positively used in a conflict like in Yemen. If PMSC’s have to follow same rules and be held accountable under the same law, it could contribute to a possible new range of possibilities to international politics. 1.4 Reading guide

(11)

11

will concern the research methodology and includes a brief discussion about normative versus empirical research and why this research will mainly focus on the former. Also, this chapter will explain how the data is collected and from which sources, and finally the operationalization of the used indicators and concepts in this research.

As the core concepts that will be used revolve around humanitarian intervention and just war theory, the third chapter will therefore be a theoretical framework that will further elaborate on these concepts and has a more in-depth explanation. Furthermore, there will be

background information of the ongoing conflict in Yemen which includes a brief overview of the situation during the past few years. Besides this, a short analysis of the empirical evidence of prior cases with PMSC involvement will be presented.

This is followed by chapter four, the analysis. This chapter aims to find an answer to the research- and sub-questions that have been mentioned above. To do this, the chapter will be divided into two parts, where first the premises are stated and explained through deductive reasoning. Secondly, the main objections to the arguments will be presented followed by some counter-arguments against the objections.

Finally, the fifth and last chapter of this research is the conclusion. This means that the questions that have been asked before will be answered. Furthermore, it consists of a reflection on limitations of the research and possible recommendations for future research and policy implementations.

(12)

12

2. RESEARCH METHODOLOGY

2.1 Normative versus empirical research

This research is based on a normative argument. Therefore, the aim of this research is to determine whether something should or should not happen, rather than explaining a real-world phenomenon by using a theory as is done in empirical research. The normative approach begins with a set of principles or norms and examines political reality in light of those principles or norms. It examines what reality could or should be based on an external standard. However, to build this normative argument, conclusions are drawn from empirical research and evidence to support the argument. Throughout the analysis, this research will follow deductive reasoning. This is a method where a conclusion or inference is drawn from the “general case to a specific case or general rule to specific rule based on premises that are thought to be true under certain circumstances” (Goldfarb, 2003, p. xiii) and where the conclusion logically follows from the premises. The premises that are thought to be true under certain circumstances lead to a conclusion to the question asked and will follow logically from the statements made.

“Whether or not the conclusion of an argument logically follows from the premises is not simply a matter of the truth or falsity of the premises and conclusion. Rather, the correctness of the argument depends on the form of the statements that make up the argument: the way those statements are constructed from smaller parts, some of which will occur multiply in those statements. Thus, we are led to investigate structural features of statements, in particular, how the truth or falsity of a statement depends on the parts from which it is constructed and the way they are put together” (Goldfarb, 2003, p. xiv).

I chose to conduct a normative research rather than empirical, because the topic and research question are morally sensitive, and the topic is involved in a longstanding debate concerning the morality question. Thus, I chose to deliberately follow a normative structure as I was interested in the question whether something should or should not happen and under which circumstances.

(13)

13 2.2 Operationalization

Although the process of operationalization is generally something that is part of the research design of empirical studies, it can be useful to briefly shed light on this process here as well as I wanted to clarify some concepts. The main use of operationalization is that it “translates theoretical propositions into concrete (empirical) expectations and connects real cases to abstract categories” (Toshkov, 2016, p. 83). With other words, through operationalization it is possible to define how to measure a phenomenon or concept that is not directly clear or measurable as it is. To operationalize a concept, indicators can be used to define it. One of the important concepts in this research that might need operationalization is the ‘military effectiveness’. In order to understand what this entails, one must know what indicators are used to measure this effectiveness. Besides the military effectiveness, also the ‘just war theory’ has been operationalized to make it better understandable. In the following table below (Table 1), the operationalization of both the concepts military effectiveness and just war theory is presented through indicators and operational definitions. The indicators or variables show from what the concept is built of and the operational definitions explain what the indicators entail and measure (See also Appendix 2 and Appendix 3).

Military effectiveness could be seen as a part of just war theory as it will be partly discussed in for example the jus ad bellum principle of probability of success and the jus in bello principle of military necessity. In that sense, military effectiveness might not seem to be a separate phenomenon that should be measured. However, this thesis aims to research whether private security forces should have the right to act militarily in Yemen to protect the

population from mass atrocities. This is partly done through measuring the effectiveness of PMSC’s and showing that they can at least be as effective as UN peacekeepers. Therefore, the measurement of the effectiveness is important to reach a conclusion on this. Measuring the effectiveness of PMSC’s will be done through several variables that are shown in Table 1. This is why it is important to make a distinction in operationalization between military

(14)

14 Table 1. Operationalization

Concept Variables Operational definitions Military effectiveness Integration Coordination of strategic,

operation-relation and tactical activities Responsiveness Ability to adapt military activities to

available capabilities and adversaries’ actions

Skill Competency of military personnel Resource quantity/quality Quantity and quality of material

resources, including quantity of personnel and quality of equipment

Jus war theory Jus ad bellum Proper authority, just cause or right intention, probability of success,

proportionality, last resort

Jus in bello Proportionality, military necessity, fair treatment and distinction

Jus post bellum Provide terms for the end of the war, construction of peace treaties, political

reconstruction government

2.3 Collection of data and sources

The focus of this research will be upon governmental and institutional documents for analysis and academic articles for background information in concepts and theoretical framework. To achieve the main goal of this research, the study is based on a normative argument that follows deductive reasoning and will link theory to practice. In this way, the design allows to explore the subject in-depth. This research will mainly be carried out through document and content analysis, in order to adequately study e.g. the UN documents about humanitarian intervention and the responsibility to protect, the authorization of the use of force, and the just war theory. In relation to these concepts, there will be looked at the private security sector; how PMSC’s could possibly also make use of the responsibility to protect and how will this play out in a conflict situation as is currently going on in Yemen.

The main authors whose work I have read, studied and used for my thesis are James Pattison, Scott Fitzsimmons, Alex Bellamy, Ulrich Petersohn, Lou Pingeot, Peter Singer and Molly

(15)

15

Dunigan, as they cover all basic topics and frameworks that relate to this research and are recognized experts in the field. Especially Pattison’s book Humanitarian Intervention and the

Responsibility to Protect: Who should intervene? has been used as a basis. However, all

authors have written extensively on concepts as just war theory and PMSC’s in combination with this, as well as the objections and issues with the private sector and humanitarian intervention. For the private sector, in particular the classicak book written by Peter Singer (2003) has been used as a general source of information about the privatization of security. On the next page, a brief overview will be shown (Table 2) of the main topics, concepts discussed and the main authors/sources that have been used for this.

(16)

16 Table 2. Collection of data and sources

Overall topic Concepts discussed Main authors/sources Intervention and R2P Humanitarian intervention

The responsibility to protect Sovereignty

Bellamy; Fitzsimmons; Reinold; Tesón & van der Vossen

Just war/just cause Just war theory

Jus ad bellum Jus in bello

Responsibility & accountability

Bellamy; Lango; Pattison

Private sector PMSC’s

Military effectiveness/efficiency Privatization of security

Intention & purpose

Dunigan; Fitzsimmons; Singer

Military effectiveness Integration & responsiveness Skill & resource quantity and quality

Brooks; Cotton et al.; Dunigan; Petersohn

Yemen and PMSC’s Yemeni war Political situation Political forecasting

Hokayem & Roberts; Shield

The UN Peacekeeping operations Facts and figures/stats

UN News

UN World Summit Document UN Resolutions

(17)

17

3. THEORETICAL FRAMEWORK

3.1 Part 1: Concepts and definitions

As this research will focus on the principles of humanitarian intervention regarding the Yemeni war, it is important to consider concepts such as the responsibility to protect, state sovereignty and the just war theory, but also the private security sector as it will be the main topic throughout this research. By incorporating those terms in the theoretical framework, it will give a better conceptualization and will place the research in an already existing

academic framework. This part will therefore present the theoretical framework that provides the main foundation of this research and will help to clarify and discuss the core terms and concepts.

3.1.1 Humanitarian intervention, R2P, and sovereignty

There is an incredible amount of literature written on humanitarian intervention and the responsibility to protect (Bellamy, 2018; Burke, 2013; Holzgrefe & Keohane, 2003; Pattison, 2010, 2013, 2018; Tesón & Van der Vossen, 2017). However, there is no clear academic consensus on the principles of humanitarian intervention and there are multiple different scholarly opinions on e.g. when it is right to intervene, who has this right and if it is at all ‘right’ to intervene (Lango, 2014; Pattison, 2010; Reinhold, 2013; Tesón & Van der Vossen, 2017). Before several views will be pointed out, it is necessary to first explore the concepts of humanitarian intervention and the responsibility to protect in general.

Fernando Tesón defines humanitarian intervention as the “proportionate international use or threat of military force, undertaken in principle by a liberal government or alliance, aimed at ending tyranny or anarchy, welcomed by the victims, and consistent with the doctrine of double effect” (2003, p. 94). Tesón’s definition aligns with two often discussed and main characteristics of humanitarian intervention: threat of military force being a central feature and the fact that the intervener should be accepted by the civilians in the intervened country (Bellamy, 2018; Pattison, 2010). This definition is already controversial as it is widely discussed whether indeed the intervening party should always be welcomed by the victims as a condition of humanitarian intervention (Holzgrefe & Keohane, 2003; Pattison, 2010; Tesón & Van der Vossen, 2017).

Since the foundation of the United Nations in 1948 until 2018, a total of 71 peacekeeping operations have been executed (See Appendix 4). This includes the fourteen peacekeeping operations that are currently led (See Appendix 5) by the Department of Peacekeeping

(18)

18

Operations (UN, 2018). According to the United Nations itself, peacekeeping, or humanitarian intervention, “is the largest and most visible representation of the United Nations: it is a collective investment in global peace, security and stability” (UN, 2018). Although there has been quite some criticism on UN operations and these have often been negatively portrayed in the media, the UN states that their operations have made an evident difference in the lives of many vulnerable populations around the globe (UN, 2018).

Humanitarian intervention is often seen as an element of the responsibility to protect (R2P), as R2P covers a wider area than ‘just’ the intervention and consists of the three

responsibilities: “the responsibility to prevent, the responsibility to react, and the

responsibility to rebuild” (Pattison, 2010, p. 13), where intervention will only concern the responsibility to react. Alex Bellamy argues that R2P typically constitutes “a way of bridging the divide – or reconfigure the relationship – between sovereignty and human rights”

(Bellamy, 2018, p. 240). On the one hand, R2P must strengthen and facilitate the protection of targeted civilians by a possible intervention, but on the other hand respect a leader’s sovereignty and the international rules about non-intervention and thus not interfere in other countries’ businesses. At the same time, this is a point of discussion, as there are parties who favor human rights over sovereignty, but also parties that consider sovereignty as an extreme important value that must never be neglected.

Reinold interprets the UN Charter as explaining sovereignty equality as that “(1) no state shall be subject to international legal norms it has not consented to, (2) no state shall be subject to the laws of another state, and (3) each state has the right to self-help” (2013, p. 54). State sovereignty is a critical subject in the debate around intervention and R2P. In China and Russia, both influential and permanent members of the UNSC, the objections against the notion of R2P remains and stress that “the international community’s responsibility to protect should be exercised in accord with traditional notions of non-interference and host state consent” (Reinold, 2013, p. 59). However, this would imply that the whole idea about R2P as such would become entirely meaningless. Sometimes the choice between either state

sovereignty or human rights is perceived as a dilemma, but Tesón argues that all just wars are about human rights and protecting a country’s civilians, therefore “the norm of sovereignty as such can never be a reason against intervention” (2017, p. 10). On the other hand, Van der Vossen argues that the “softening of sovereignty has gone already too far and that further expansions of the right to intervene are unwise and undesirable” (2017, p. 10). State

(19)

19

should be refrained from humanitarian intervention, at the same time the tyrant leader is being protected. In this way “the law is still too protective of tyrants and the international norms should move cautiously in the direction of permissibility” (Tesón, 2017, p. 10). In the UN World Summit 2005 Outcome document, paragraphs 138 and 139 (See Appendix 6) for the literal registration of UN articles 138 and 139) present notes on the R2P concerning genocide, war crimes, ethnic cleansing and crimes against humanity:

(1) “The responsibility of the state to protect its population from genocide, war crimes, ethnic cleansing and crimes against humanity, and from their incitement, (2) the international community’s responsibility to assist the state to fulfil its responsibility to protect and (3) in situations where a state is manifestly failing to protect its population from the four crimes, the international community’s responsibility to take timely and decisive action through peaceful diplomatic and humanitarian means and, if that fails, other more forceful means in a manner consistent with Chapters VI (pacific measures), VII (enforcement measures) and VII (regional arrangements) of the UN Charter” (UN General Assembly, 2005).

The concept of R2P originated relatively recently in the debate about humanitarian

intervention in the aftermath of the conflicts and human rights violations in Rwanda and the Balkans in the 1990’s (UN, 2014). There was an effective (international) solution needed to react to these atrocities, keeping in mind state sovereignty and the right to intervene. In 2001, the concept of the responsibility to protect was “presented in a report of the International Commission on Intervention and State Sovereignty (ICISS)” (UN, 2014). In international law, a state always has the primary responsibility to protect its own population. However, if a state fails to do this, the responsibility to protect the population transfers from the state to the international community. In general, the international community “has a responsibility to ensure that sovereigns fulfil their duties to their citizens by preventing and reacting to cases of genocide, mass killing and ethnic cleansing and helping to transform societies afterwards” (Bellamy, 2018, p. 248). The High-Level Panel on Threats, Challenges and Changes

endorsed the norm of an existing R2P in 2004 and claimed it as a collective international responsibility (UN, 2014). There has been decided that conducting a military intervention is only authorized as a last resort. If this is the case, the UN Security Council have proposed basic criteria to legitimize the use of force that should be followed. These criteria include

(20)

20

“seriousness of the threat, proportionality and chance of success” (UN, 2014) as later will be explained as part of the just war theory. Following these decisions, in 2005 at the UN World Summit, “all member states formally accepted the responsibility to protect its population from genocide, war crimes, ethnic cleansing and crimes against humanity” (UN, 2014). This also touches upon the right to intervene, or the duty to intervene, which are two

inherently different concepts but very much related. As James Pattison explains it, in order to have the right to intervene, “an intervener needs to possess the qualities necessary for its intervention to be justifiable” (2010, p. 18). This basically means that the intervener should at least be able to follow international humanitarian law (IHL), have a plausible chance of being successful and/or effective, and some, amongst others James Pattison, argue as well that the intervener must be welcomed by the people of the country that is being intervened. Thus, “there is a general right to intervene, but not a general, unassigned duty to do so” (Pattison, 2010, p. 15). A humanitarian intervention might be morally permissible in a certain situation, but this does not per definition mean that a state or intervener is morally obligatory to act and needs an explicit reason why it should indeed intervene. If an intervener has the duty to intervene, it first needs to be sure of the principles mentioned above to have the right to intervene.

An important aspect of the debate around R2P is the acceptance within international society. Because to what extent is such an operation accepted at all, regardless of the question who should intervene. It is said several times before that the time for R2P had come and gone already, and that the international community should come up with a new idea ‘replacing’ the notion of R2P. Allen Buchanan for example argues that there should be a “creation of new institutions that would allow for a more permissive norm” (Buchanan, 2006, p. 3) regarding the just war theory and waging war through humanitarian intervention.

There are multiple states that dismissed the concept of R2P, many of them members of the Non-Aligned Movement (Bellamy, 2018: Reinold, 2013) and the G-77 (Group of 77 - Coalition of 77 developing countries in the UN). They criticize the concept of R2P and believe that it is “only about condemning any labeling of countries as good or evil and repressive based on unilateral and unjustified criteria” (Reinold, 2013, p. 57). Governments of these states claimed that with an intervention there was a “small elite of Western states to reinterpret the principles of international law to give way to doctrines like preemptive war and the now so-called responsibility to protect” (Reinold, 2013, p. 57). It does raise a question when overall, countries of the NAM movement are (strictly) against the R2P, but

(21)

21

Western countries tend to be in favor of R2P. Is R2P really something of the Western world as a means for humanitarian intervention (in disguise) to enforce regime change and install democratic countries after the removal of authoritarian leaders?

There is quite some criticism on the concept of the responsibility to protect. Arguments include the unclarity of the responsibility for the intervening agents and the selective cases of humanitarian crises as well as the question whether intervention is a right, a duty or just an option (Pattison, 2010, 2013), the question whether intervention can at all ever be truly justifiable (Walzer, 2006), and the undermining of state sovereignty (Van der Vossen, 2017). Furthermore, some of the literature touched upon the ‘politico-strategic objectives’ and the idea that R2P might be exploited by (Western) states for their own benefits (Airstrope, 2018). These arguments are however scarce and barely go in-depth into the discussion of R2P. In practice, there is not at all a clear boundary or rule for when or when not to intervene. Not only is it extremely hard to distinguish such a boundary, there will never be a consensus on when it is right to intervene, what conditions should be followed and most recently important who should intervene. The most important requirement that has been stated throughout literature is ‘just cause’ and must be a priority when it comes down to humanitarian

intervention. This means that the reason for an intervention needs to be just and in reaction to violations of human rights of populations (Pattison, 2010). Although there is much

disagreement on these topics, there are some factors that are universally accepted. One of these is the intervener’s effectiveness. The intervener should be effective or at least have a reasonable expectation to be (Pattison, 2013), otherwise it would make absolutely zero sense to intervene. The effectiveness is also a prominent factor in the debate about PMSC’s in humanitarian intervention. It is important to know which interveners are the most effective and suitable. Based on this knowledge, a strategy could be developed to ensure a more efficient intervention. Therefore, the main question that this research aims to answer is whether PMSC’s also should have the R2P in case of a humanitarian intervention. By

exploring this question, it is possible to determine whether PMSC’s can also be considered as suitable interveners.

3.1.2 Just war theory

First of all, it is important to mention the UN Article on the prohibition of the use of force in international law that have been founded in 1945 which has been described in the following terms: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other

(22)

22

manner inconsistent with the Purposes of the United Nations” (UN Charter 1945, Article 2(4)). Humanitarian intervention and the R2P go hand in hand with just war theory. In general, just war theory consists of three parts, including jus ad bellum, jus in bello and the recently added jus post bellum (Fitzsimmons, 2015). Where jus ad bellum is concerned with the situation before the war/conflict, jus in bello is about the conduct during the war. Jus post

bellum has been coined recently and refers to the situation afterwards, such as developing

peace treaties and political reconstruction of the government (Pugh, 2018). James Pattison states that an intervener’s conduct (jus in bello) “rarely receives detailed and systematic attention in the literature on the ethics of humanitarian intervention”. Rather, the focus has been on the ‘ad bellum’, which refers to the conditions and set of criteria that must be met in order to determine whether starting a war by an intervener is permissible. Principles of jus ad

bellum include for example “just cause, reasonable prospect of success, right intention, and

legitimate authority” (Pattison, 2010, p. 99).

It is therefore important for this research to look more into especially the jus in bello

principles of the just war theory. Not only because it is not as much researched as the jus ad

bellum counterpart, but also because it is highly relevant when considering private security

actors as possible interveners in a conflict.

First of all; jus ad bellum. Whereas jus in bello is about the conduct during war, jus ad bellum is about the right to wage a war, thus the events leading up to an actual intervention and determining whether there is indeed a right to wage war. Lango in his book The Ethics of

Armed Conflict distinguishes four levels of military action in theory when waging a war.

These are the tactical level, operational level, strategic level, and a political level (Lango, 2014 p. 92). Generally, only at the political level principles of jus ad bellum are applicable, whereas the jus in bello principles apply to the other three levels. The process of the political level entails determining whether there is the right to go to war. “Just cause, last resort, proportionality and noncombatant immunity are the core just war principles” (Lango, 2014, p. 2), or with other words, the jus ad bellum principles. Each of these principles is part of the criteria for determining “whether a proposed military action would be just” (Lango, 2014, p. 2).

Regarding jus in bello, James Pattison distinguishes both external and internal jus in bello principles. External jus in bello concerns the “rules an agent should follow in connection with opposition’s soldiers and civilians” (Pattison, 2010, p. 101), whereas internal jus in bello refers to the “rules that an agent should follow in connection with its own soldiers and

(23)

23

citizens. (Pattison, 2010, p. 101). In general, when discussing jus in bello, the ‘external part’ is what is often meant and include the principles of discrimination (permissible versus

impermissible targets), proportionality, prohibition of certain weapons and humane treatment. (Orend, 2006; Pattison, 2010). Internal jus in bello would not be so relevant in terms of determining whether PMSC’s should be allowed to use force. External jus in bello on the other is very much relevant as this is often the problem concerning private security actors. Another problem PMSC’s might face when it comes to just war is the targeting of subjects and the responsibility. McMahan however argues that it is unclear why a soldier that is involved in a ‘just war’ is also an acceptable target. Combatants in just wars do nothing wrong and therefore should not be killed. Rather, the rebels and the governments forces in these cases are ‘permissible targets’. Combatants, conscripts, and in all cases (forced) child soldiers are perhaps always impermissible targets. Pattison explains an example from the first Gulf War, Iraq 2003, where it was reasonable to assume that the “Iraqi Republican Guard, which was a highly paid, elite volunteer force, was more responsible for their actions than the poorly armed Iraqi conscripts who were forced to fight by threats to themselves and their families” (Pattison, 2010, p 103). With the involvement of PMSC’s, this would be the same. They are fully responsible for their actions, but “raise security concerns since they are not embedded in the control and accountability mechanisms of regular troops” (Chojnacki, Metternich & Münster, 2009, p. 2). In all cases however, “morally responsible combatants should be the primary targets of any military action by an intervener” (Pattison, 2010, p 104). Another important aspect of the just war theory is the degree of legitimacy. It is necessary to determine whether an intervener can be legitimate and whether to “authorize or endorse the use of military force” (Lango, 2014, p. 19) of this intervener. The five criteria of legitimacy to determine this are, (1), seriousness of threat, (2) proper purpose, (3) last resort, (4) proportional means, and (5) balance of consequences (Lango, 2014, p. 19). The fourth one, proportionality, as the jus in bello principle of discrimination, are two principles that are important determining the qualities of the private sector in an intervention. The principle of proportionality “admonishes combatants to refrain from using significantly more deadly force then their opponents in order to avoid inflicting significantly more harm than they themselves suffer” (Fitzsimmons, 2015, p. 1074). The principle of discrimination concerns “the care with which violence must be exercised” and stresses that combatants must distinguish between the combatants and the civilians they encounter and treat them differently” (Fitzsimmons, 2015, p. 1078), which reflects the arguments made by McMahan regarding combatants in just war.

(24)

24

3.1.3 Private security sector and the use of force

Peter Singer defines private military and security companies as “corporate bodies that specialize in the provision of military skills, including combat operations, strategic planning, intelligence, risk assessment, operational support training and technical skills” (2003, p. 8). Since the 1990’s, PMSC’s have been “active in zones of conflict and transition throughout the world where they have showed to be critical players in several conflicts and often the determinate actor” (Singer, 2003, p. 9). As Singer explains further, as of 2003, PMSC’s have already been active on every continent except for Antarctica as is shown on the map below (Figure 1). Countries that are colored grey are countries where PMSC’s are confirmed to have been active.

Figure 1. Countries where PMSC’s have been active, up until 2003 (Singer, 2003)

With the existence of, and increase in, PMSC’s, we have seen the ‘market for security’ shift from a traditionally public context, as it has always been the governments’ task to provide security (Singer, 2003, p. 8), to a more private context.

According to Singer, the ‘security capability gap’, or reduced (Western) military support in unstable regions (2003) as he states it, is one of the factors that contributes to the growth of the private military market, and thus the privatization of security. More recently, Petersohn (2017) and Avant (2018) built further upon this, explaining that the demand for private forces “grew much larger quickly with the ramp up in Iraq and Afghanistan and looked to the private sector supply as those Western states turned away from those conflict” (Avant, 2018, p. 353). Petersohn argues that the growth of the private security market is mainly facilitated “through the demand that partly comes from failing or failed states” (2017, p. 1047). The

(25)

25

inability to deploy troops (through the UN) by mostly Western states leaves a gap in the market that PMSC’s are eager to fill as the demand will not decrease. From 1990 until 2007 for example, “twenty-two out of thirty-two failing or failed states sought PMSC services” (Branovic, 2011, p. 23-24) as a result of the public inability to provide security, which causes the shift to the private security.

Singer (2003), as well as Piatek and Avant (2018), argue that the privatization of the military was basically a logical step forward due to the “rising global trend of privatization and outsourcing” in general (Singer, 2003, p. 1). It was only a matter of time before the military and consequently war would also be privatized. Avant touches upon something interesting regarding this development, and states that in contemporary discussion “it is often lost that the privatization of security does not so much transfer power from one institution (state) to another (market) so much as pose a challenge to the way both states and markets have

functioned in the modern system” (2018, p. 361). That is exactly why privatization should not be considered so black and white as something ‘good or bad’ or ‘wrong or right’. Rather, it could be viewed as a natural development how we fight wars in contemporary society. In the past, there has already been a major change from the ‘old wars’ to ‘new wars’ as “violent conflicts are now within states rather than between them” (Buchanan, 2003, p. 131). So, if the privatization of security has only been a matter of time (Piatek, 2017) it can be beneficial to not only see this in a negative light as there might be more to gain than is done now if this privatization is controlled and conducted well.

Following the privatization of security, there is the marketization of war. When it comes to the marketization of war, it is often argued that this marketization of war is always morally wrong (Fabre, 2012; Fitzsimmons, 2015). Technically, this means that it will never be permissible to deploy private security forces in a conflict, as a common idea is that private security forces hardly ever perform in line with the just war principles. However, this research will demonstrate in chapter four that this is not necessarily true.

Something else to consider regarding the private security sector is military effectiveness. It is often argued that PMSC’s are beneficial as they could operate highly effective as well as efficient (Branovic, 2011; Fitzsimmons, 2015; Gumedze, 2011; Singer, 2003). There are said to be four core features that facilitate military effectiveness:

“(1) integration; coordination of strategic, operation-related and tactical activities, (2) responsiveness; ability to adapt military activities to available

(26)

26

capabilities and adversaries’ actions, (3) skill: competency of military personnel, and (4) resource quantity and quality: the quantity and quality of material resources, including the quantity of personnel and the quality of equipment” (Brooks, 2007; Dunigan, 2011; Petersohn, 2017, p. 1049).

In general, if the level of development of these four features is high, the military will likely be more effective. Although traditionally this may relate to the public military forces, it likewise applies to the private forces. For the PMSC’s to ensure a high level of effectiveness, their level of service and performance are important factors. The effectiveness of PMSC’s is often highlighted as one of the (if not the) greatest advantages, mainly because “they hire experienced military professionals who have extensive training and expertise” (Pattison, 2011, p. 139). Ulrich Petersohn argues that whenever military effectiveness is increased, so is conflict severity (2017). By intervening through PMSCs “new military tactics, more

sophisticated weaponry, or simply additional manpower can enable one party to strike harder, and as a consequence, fighting can be expected to intensify and become bloodier” (Petersohn, 2017, p. 1055). Therefore, it is typically assumed that external intervention will increase the severity of the conflict, as well as the hostilities.

In order to minimize information asymmetry and poor performance of PMSC’s, “it is essential for the principal to implement an oversight structure to gather information on the agent’s performance” (Petersohn, 2017, p. 1052). However, in weak states especially, implementing an oversight structure is problematic. There have been suggested some ideas about “applying the support of external actors could be an option for improving oversight in (weak) states” (Petersohn, 2017, p. 1053), such as the UN.

(27)

27

3.2 Part 2: Background information and empirical evidence

In the second part of this chapter there will be given a brief overview of the Yemeni war and some background information as it is important to understand the dynamics of the war as well as the parties involved. Furthermore, there will be investigated what kind of existing empirical evidence there exist where private military and security companies have proven to be successful. In the analysis, there will be further drawn upon this retrieved information.

3.2.1 The Yemeni conflict

Often overshadowed by the longer running war in Syria, the conflict in Yemen takes its toll. The larger Yemeni crisis has its roots in 2011, or arguably even before that, but the situation escalated in 2015 when the current civil war started with a Saudi-led coalition (UN, 2018) after the Houthi’s forced the incumbent members of the government to resign upon which they announced the parliament’s dissolution. As a result, since the beginning of 2015, the Houthi’s installed their Revolutionary Committee to govern the country (Hokayem & Roberts, 2016). The Yemeni civil war is fought between two factions: the (Shia) Houthi militias and the then-incumbent Yemeni government including president Hadi. Important to notice in this conflict is that the Houthis are Shi’ites, while the government, and obviously Saudi Arabia, are Sunni Muslims. This causes wider problems within the region, as the situation in Yemen is believed to be a proxy war for Saudi Arabia and Iran, including the US who has its alliance with Saudi Arabia (Hokayem & Roberts, 2016; Shield, 2018). Although it is still unclear how Iran contributes in the conflict at the Houthi’s side, “Saudi Arabia and the UAE (also Sunni and partner of Saudi Arabia) have been seriously concerned about Tehran’s apparent assertiveness in the region” (Stevenson, 2017).

Before the initial escalation in 2015, several clashes between the two factions happened occasionally, and demonstrations were held against the government. Houthi’s gained more political influence however remained unhappy with many proposals by the president upon which they seized the government and presidential compound as they, together with former president-Salah supporters, “forced the government out of the capital Sana’a” (Stevenson, 2017). Following this, the Saudi-led coalition began its airstrikes in March 2015, under the name Operation Decisive Storm (Hokayem & Roberts, 2016, p. 165), after the Houthi’s have already captured the airport and multiple larger cities and neighborhoods. The coalition’s initial objective was to drive back the Houthi’s from Sana’a and restore the government led by president Hadi. However, it is believed the Saudi’s had more motives for the airstrikes including “eliminating the threat posed to the Kingdom by Yemen’s air and ballistic missile

(28)

28

forces, which had fallen into the control of the Houthi-Saleh alliance and preventing the Houthi’s suspected state-sponsor Iran from gaining a ‘strategic foothold’ on the Arabian Peninsula” (Hokayem & Roberts, 2016; Shield, 2018, p. 464).

In the end of April this Operation Decisive Storm transitioned into Operation Restoring Hope. Although this was supposed to be a more political operation, nothing really changed as the fighting continued. About 3 months later, in July, the Saudi Arabia-led coalition “executed Operation Golden Arrow; the amphibious landing of a conventional ground force battlegroup in the port of Aden” (Shield, 2018, p. 466), which goal was ultimately to drive back the Houthi forces from the south and ‘free’ Aden from Houthi control.

Since the beginning of the conflict, “Saudi Arabia and the UAE were eager to obtain international support for the intervention” (Hokayem & Roberts, 2016, p. 170). The United States played an important role in Yemen, as they provided operational military support to the coalition including the supply of munitions, tactical intelligence and fuel tankers”

(Stevenson, 2017). Despite many international calls for ceasefires and truces the situation has not been improved yet.

As the war proliferates, it takes its toll and comes with serious costs in the form of thousands of civilian casualties. The targeting of non-combatants and thus killing of innocent people increased UN criticism about the airstrikes conducted by the coalition (Stevenson, 2017) that caused shortages of water, food, healthcare and medicines. The United Nations even declared that the “massive scale of humanitarian need has turned Yemen into the world’s worst

humanitarian crisis in decades” (UN News, 2018). As of now, over two million people are already displaced, and more than 20 million (UN, 2018) are in need of humanitarian aid as they face the risk of starvation or deadly diseases.

3.2.2 Empirical evidence of prior cases with PMSC’s involvement

One of the examples that is perhaps the most known of private security companies, is the involvement of the American company ‘Blackwater’ in the conflict in Iraq from 2003 onwards. Mainly because of their actions and behavior, PMSC’s became infamous and consequently received quite a bad name after this. However, there are more conflicts where PMSC’s have been involved in. There are multiple studies on the conduct and behavior of private forces in different conflicts throughout the years. Some of the studies that will be used for this empirical research are these of Bures (2005), Chojnacki, Metternich & Münster (2009), Dunigan (2011), Ostensen (2013), Linti (2015), and Badell-Sánchez (2018).

(29)

29

mercenaries in wars. Their data shows that “in a third of all wars in the second half of the 20th century, one or the other warring faction hired mercenaries – foreigners who actively fought for money and who were not integrated in the regular armed forces” (Chojnacki, Metternich & Münster, 2009, p. 2). The figure below provides an overview of internal wars with and without involvement of ‘mercenaries’ between 1950 and 2003.

Figure 2. Internal wars with/without involvement mercenaries (Chojnacki, Metternich & Münster, 2009, p. 15)

This already shows that mercenaries were regularly involved in different armed conflicts around the globe (See Appendix 7). Mercenaries and private security forces are not the same thing but can in a way be seen as successors. Although it became better known recently, the involvement of these forces has been going on for a long time. Without a doubt, there have been many PMSC’s involved in various conflicts, so the idea that this is not regularly

happening can be dismissed. In this section the main focus is on the involvement of PMSC’s in (UN) interventions, because of the relevance to the research question, however also other cases are analyzed. Because of the very few historical case studies and accounts available due to the lack of available data there are barely any quantitative studies (Branovic, 2011;

Chojnacki et al., 2009; Cotton et al., 2010; Fitzsimmons, 2014) in the literature so far on mercenaries and private forces in wars and conflicts. Nevertheless, some sources have been found and will provide the data for this research section, with the question in mind if private security actors been proven to be effective, or at least active, in UN peacekeeping situations or humanitarian interventions.

First of all, the use of PMSC’s by the UN has been “legitimized by the UNSC in the meeting 6675 and internalized by the UN bureaucracy as exemplified by the Peacekeeping Operations

(30)

30

Departments discourse” (Badell-Sánchez, 2018, p. 11). Molly Dunigan states in her book

Victory for Hire: Private Security Companies’ Impact on Military Effectiveness, that there

were about “173,300 private contractors employed by the United States in Operation Iraqi Freedom as of December 2008, compared with 146,000 US troops” (Dunigan, 2011, p. 46) (See figure 3 for an overview of contractors and US troops in OIF). Most of these forces had been hired by the US defense department to fight alongside the regular military troops. It has been frequently noted however, that the coordination of the private security forces in Iraq was, sometimes highly, problematic. Nevertheless, the active roles of private forces in Iraq as well as in Afghanistan – in this case they were they mainly for protecting US troops

(Dunigan, 2011) – in the previous decade are prominent examples of the involvement of PMSC’s in conflict zones during (peace) operations.

Figure 3. Number of contracts in OIF in relation to US troops (Cotton et. al., 2010, p. 13)

The deployment of PMSC’s in Iraq and Afghanistan is not unique. While in these two cases the private security forces were operating alongside the state’s military, there are two known cases where PMSC’s were used instead of regular military forces: Croatia in the mid 1990’s and Sierra Leone in 1997-1998 (Dunigan, 2011, p. 70).

The Military Professional Resources, Inc. (MPRI) is an American firm consisting of mainly former military personnel and has a history of high-paying government contracts (Dunigan, 2011, p. 71). During the Croatian War of Independence, the Croatian defense minister requested military assistance from the United States amid the war. After some consult the MPRI was sent to Croatia to reform its defense, offer training and advice, and proved to be overall successful regarding the increase of skill and responsiveness of the Croatian Army (Dunigan, 2011, p. 72-73).

(31)

31

In Sierra Leone, the involvement of PMSC’s began with the then-president in the 90’s requesting the firm ‘Executive Outcomes’ to intervene in the civil war that was going on in the country as a reaction to “the lack of interests from the British government and its refusal of the government’s request for military support” (Dunigan, 2011, p. 83). This private military firm was a direct precursor of the later PMSC Sandline. After the elections the situation in the country deteriorated again regarding military terms. It was in this time, however discovered later, that the firm Sandline “shipped hundreds of guns and ammunition to Sierra Leone and eventually to Nigerian peacekeepers” (Dunigan, 2011, p. 84).

Out of the current peacekeeping operations, the UN has hired armed security personnel in seven of them, according to the United Nations General Assembly, these being MINUJUSTH MONUSCO, UNAMA, UNAMID, UNIFIL, UNMIK, and UNSMIL (2012) (See also

Appendix 8). This includes a variety of performed activities, that can all be categorized under either military support, political/economic functions and/or humanitarian support (Badel-Sánchez, 2018, p.6; Bures, 2005). However, due to the lack of (up-to-date) data and openness of information, it is unsure in how many operations PMSC’s are still active today.

Nevertheless, an analysis of the mentioned cases in this chapter (Appendix 8Appendix 8 for an overview of all cases)illustrates that in the majority of cases “hiring private military and security firms to carry out backdoor assistance roles often results in tactically, strategically, and operationally effective military actions” (Dunigan, 2011, p. 70). Although much of the coordination and some of the conduct is seen as problematic, there have been valuable lessons learned.

 Structural changes in deployment of private security personnel  Establishment of Armed Contractor Oversight Division (2008)  Closer oversight by DoD (Department of Defense)

 Establishing common rules and requirements for the use of force

 Improve coordination of PMSC missions (Dunigan, 2011, p. 48; US GAO, 2005) Obviously, this was a very brief overview of different private actors involved in conflicts and operations throughout several countries. However, it illustrates that there are indeed fighting (and everything else that they do) PMSC’s alongside – and sometimes even instead of – the state’s military and it shows that PMSC’s could be an effective tool in maintaining

(32)

32

4. ANALYSIS

The following chapter will consist of two parts. In the first part, the three premises will be explained and explored that have been based on the research question: Should private security forces have the right to act militarily in Yemen to protect the population from mass atrocities? Every premise is a statement about which I will provide arguments in order to argue for the premise to be true.

In the second part of this chapter, the main objections that can be found throughout the academic literature against each premise will be stated and further explained. Following this, I will provide counter-arguments against the objections and argue in favor of the stated premises.

4.1 Part 1: Premises and arguments

As is mentioned briefly above, the three premises will first be stated and explained elaborately. These are: (1) PMSC’s can adhere to just war principles just as UN or state militaries can, (2) Private security forces can at least be as effective as UN or state militaries in Yemen and (3) If there will be a humanitarian intervention in Yemen in accordance to just war theory, the party that will likely have/bring the most benefits ought to be employed in Yemen. The premises are based on empirical research and a wide plethora of arguments that can be found in academic literature.

4.1.1 P1: PMSC’s can adhere to just war principles just as UN or state militaries can

The first argument I will make is that private security forces can as well as UN or state militaries can adhere to just war principles. Just war theory has “traditionally been divided into two sets of principles: the jus ad bellum and the jus in bello” (Fitzsimmons, 2015, p. 1070). Jus ad bellum concerns the requirement that wars are only conducted when there is a humanitarian intention and is following a just cause, but also the principles of proportionality and the fact that there should be a plausible chance of success. The principles of jus in bello on the other hand determine the justness of actions during a war, which is arguably more relevant when analyzing the behavior of PMSC’s in conflict and important to know and understand to what extent PMSC’s can behave ethically and morally in a peacekeeping operation.

In this section, the argument will be based on each of the corresponding principles of jus ad

bellum and jus in bello and explaining these in the context of the private security factor. First,

(33)

33

and will here be analyzed regarding the principles of proper authority, just cause and right intention, probability of success, proportionality and last resort, however, all within the framework of a humanitarian intervention.

Proper authority suggests that a war is only permissible or just if a legitimate authority wages the war. This idea however is based on historic wars when a state attacked another state and had to publicly declare the war it was waging. When a PMSC is employed in a humanitarian intervention, it is done so by the United Nations. In this case, the UN will be the legitimate authority and therefore the PMSC’s could intervene as the war will waged by a legitimate authority. It is of crucial importance here what does count as a legitimate or proper authority. One may argue that this can only be a state or a coalition of states, but this is a very subjective term what counts as authority. When speaking of a coalition of states, it might as well be the United Nations which has this authority. This part also concerns state sovereignty, a controversial topic in the general debate about humanitarian interventions. Obviously, state sovereignty is an important right in international society and should not just be contested. As UN article 2(4) louds: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations” (Charter of the UN, 2018). On the other hand, protecting state sovereignty at all times also leads to

protecting tyranny and dictatorships and endanger the population, which leads to sometimes the necessity to intervene. Besides, all just wars and interventions are about human rights and protecting a country’s civilian population, therefore indeed the “norm of sovereignty as such can never be a reason against intervention” (Tesón & Van der Vossen, 2017, p. 10).

Furthermore, there is just cause or right intention. Arguably, these are the most controversial principles of jus ad bellum in general. Although just cause and right intention are often put together, they are however two different things, but closely related. Regarding a just cause for war, this traditionally was an attack by an invader or aggressor. In general, “the just cause principle morally constrains us from performing military actions that have unjust goals” (Lango, 2014, p. 108). In other words, the reason for starting a war must be just and cannot be only for punishing people or (re)capturing land or similar reasons (McMahan, 2008). If PMSC’s would be hired and employed in peacekeeping missions, the goal, or cause of this mission would not change whether there are PMSC’s involved or not. Therefore, the cause for going to war is just in all times. Although PMSC’s could have a different motive or intention (or just multiple motives), they are still going to war because of humanitarian reasons in order to save the Yemeni population from mass atrocities.

All for the good cause of humanitarian protection: A public or private security direction?