The Privatization of Peacekeeping Operations

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Nieck Slikker

January 2017

1st_{supervisor: Dr. A.G. Hallo de Wolf}

Rijksuniversiteit Groningen

2nd_{supervisor: Prof. Dr. H.-J. Heintze}

Ruhr-Universität Bochum

This thesis is submitted for obtaining the Joint Master’s Degree in International Humanitarian Action. By submitting the thesis, the author certifies that the text is from his own hand, does not include the work of someone else unless clearly indicated,

The Privatization

of Peacekeeping Operations

Photo: Ben Brody – The GroundTruth Project

Description: A PMSC contractor leads Afghan

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Abstract

Peacekeeping, a practical arrangement made by UN member states, has faced many challenges in the past. Many of these challenges can be traced back to several crucial factors: 1) the supposed insufficient funds to maintain a standby armed force 2) the lack of higher quality troop contributions by industrialized states, 3) the majority of contributions consisting of lower quality troops from developing states, and 4) the time it takes to assemble and deploy an armed force. In most cases, these challenges are caused by the self-interest of states. Both an explanatory and exploratory approach were taken to discuss the topics presented in this thesis. Information was gathered from a wide variety of primary and secondary sources, and was supplemented with results from a public survey that was launched in three countries, namely the Netherlands, Germany, and the United States. For this survey, the sample consisted of 238 respondents, who were 18 years or older and had legal citizenship in one of those countries.

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Tables and figures

Table 1: Contributing state and average troops per month in 2015 ... 24

Table 2: Mission, budget and personnel between 1 July 2016 to 30 June 2017 ... 75

Table 3: Mission, budget and estimated PMSC strength per month ... 76

Table 4: Concurrence on donation behavior, scale one to seven ... 85

Table 5: Familiarity with challenges of UN peacekeeping ... 86

Table 6: Combined percentages of undecided and apposed respondents per concern per country ... 89

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1 Abbreviations

AP I Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts

ASF African Standby Force AU African Union

DPKO Department of Peacekeeping Operations DRC Democratic Republic of the Congo

EU European Union

EU BG European Union Battlegroups ICC International Criminal Court

ICCPSSP International Code of Conduct for Private Security Service Providers (ICoCA) ICJ International Court of Justice

ICoCA International Code of Conduct Association ICRC International Committee of the Red Cross

ICTY International Criminal Tribunal for the former Yugoslavia IGO International Governmental Organization

IHL International Humanitarian Law IHRL International Human Rights Law

IPI International Peace Institute

IPOA International Peace Operations Association

ISOA International Stability Operations Association (formerly known as IPOA) Mercenary

Convention

1989 International Convention Against the Recruitment, Use, Financing and Training of Mercenaries

MINUSCO United Nations Organization Stabilization Mission in the Democratic Republic of the Congo MINUSMA United Nations Multidimensional Integrated Stabilization Mission in Mali

MOUT Military Operations in Urban Terrain NATO North Atlantic Treaty Organization

NGO Non-governmental organization PMSC Private Military and Security Company

PNG Papua New Guinea POW Prisoner of War

QRF Quick reaction force

SHIRBRIG Standby High-Readiness Brigade US United States

UN United Nations UNHCR UN Refugee Agency

UNSAS United Nations Standby Arrangement System UNSC United Nations Security Council

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2 Preface

It is forbidden to kill; therefore all murderers are punished unless

they kill in large numbers and to the sound of trumpets.

(Seldes 1983, 716)

The quote above is from the historian and philosopher Voltaire. In a cynical manner, Voltaire referred to the fact that we seem to have accepted the idea that it is okay to use force, whenever it is done in name of the government and serves the national security of the state. Moreover, we have also come to accept Max Weber’s theory on the state monopoly on the use of force (Weber 1946). As such, we believe that our military and police have the legal right to act with force, as long as it is proportionate and legitimate. As will be elaborated more in-depth later in this thesis, the idea of outsourcing some of those tasks to the private security sector appears to be more controversial and sparks quite a debate amongst scholars and politicians.

Peacekeeping is the United Nations’ ad hoc way to apply collective security to support the transition to a peaceful environment. However, it has its challenges, internally that is. Certain low points during peacekeeping missions and the frequent stalemate in the United Nations Security Council, made me wonder how we could steer clear of some of these issues. I thought about how governments fail to act in the appropriate manner and how this causes all those innocent lives to be lost. The idea for the document that lies before you, came from my conviction that we owe it to humanity to respond more efficiently and effectively to all those conflicts around us. I dedicate this work to those who suffer the consequences of inadequate response by governments.

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3 Introduction

3.1 Problem statement

At moment of writing, there are 16 peacekeeping operations on-going around the globe. These peacekeeping operations are led by the Department of Peacekeeping Operations (DPKO) (DPKO 2016a). The history of the DPKO goes back to 1948, when it started its first operations (DPKO 2016b). Since then, the DPKO has finished 55 missions around the world, differing from monitoring/observation missions to peacekeeping and peace enforcement missions (DPKO 2016h). If pacific settlement as discussed in Chapter VI of the UN Charter, fails to realize, the decision to maintain international peace and security through use of force lies with the United Nations Security Council (UNSC) in accordance with Article 42 of the UN Charter. Throughout this thesis, frequent reference is made to ‘the use of force’. This does not mean per definition that hostilities will take place. Instead, it may mean that an armed force is deployed so they can respond to threats against peace and security if necessary, but otherwise it will refrain from using violent means. UN peacekeeping missions are an example of such use of force. Such operations are financed by the member states of the United Nations (UN) through Article 17 and are supported by them in extensive ways, in accordance with Article 43, to ensure that the intervention successfully restores or maintains international peace and security. Moreover, Article 43 adds that this can happen on request of the UNSC or based on a special agreement or on other agreements (UN 1945). The amount of money that each member state should contribute to these operations is based on a formula that the states have created themselves and considers various factors, one of them being the relative economic wealth of states. The five permanent members of the UNSC are obliged to contribute a larger share to the operations as it is their main responsibility to maintain the international peace and security. These principles concerning the financing of such operations have been established in resolution A/RES/55/235 (UN 2000). However, the UN faces several challenges when it is to decide on, finance, or establish peacekeeping missions. Firstly, even though the member states are obliged to contribute to peacekeeping operations, it is a known fact that states are not always willing or able to do so in a timely manner. For example, as of the 30th_{of June 2015, the member states still owed a combined total of approximately $1.6}

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to establish and deploy a peacekeeping force, the lack of troop contributions by industrialized states, and the lower quality of armed forces contributed by developing states. As such, this thesis will focus on how peacekeeping operations currently work, what has already been done up to moment of writing to improve its workings, and if private military and security companies (PMSCs) would be a suitable alternative to overcoming said challenges.

3.2 Research justification and research question

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long-briefly proposed, was to put in place a non-profit international non-governmental organization (INGO) that would function as an intermediary that guarantees the right mix of PMSC services and he named it a so-called International Peace Maintenance Organization. The organization would have a variety of PMSCs to its disposal who are all certified, regulated, and highly trained. These PMSCs would then be tasked to disrupt the operations of rebel groups and would also be deployed to restore the order in the East. Mayer knew that the UN budget for peacekeeping operations was very likely insufficient to finance the PMSC operations. As such, he suggested that this organization would collect donations from human rights organizations and citizens. Although the idea of INGO-funded PMSC peacekeeping operations has now been presented and is thus no longer new, it is also not thoroughly researched yet. Mayer skimmed the surface and made several interesting initial proposals concerning funding, regulation, and legitimacy, but did not go into detail much (e.g. the likelihood of citizens making charitable donations to support armed interventions). This means that there is considerable reason to further research this concept. Moreover, Mayer’s article is the only one to date that envisions this concept.

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(Avant and Sigelman 2010). Thirdly, there is the question of financing the deployment of such PMSC forces. As the reimbursement per UN soldier is low, it would appear unlikely that the UN could afford to fully finance the operation of PMSCs. Because of this, there is also little economic incentive to investigate the alternative methods for military action, despite the potential such PMSCs can add to peacekeeping operations (Fetterly 2006). As also argued by Taylor (2009), this is quite irresponsible as innocent lives are threatened and the potential capacity of PMSCs as peacekeeping forces is neglected. Fourthly, it needs to be considered how this new concept can be regulated in such a way that the UN is not bypassed and that the use of PMSCs as UN peacekeepers is legitimate within its norms and principles. As Leander and Spearin (2013) also point out, the regulation of the use of PMSCs is still an issue that many governments struggle with; the European countries more than the United States. European countries tend to choose indirect or hybrid forms (a combination of different security elements, e.g. one type of task which can be conducted by both PMSCs and government defense forces) of contracting. This is confusing and insufficiently transparent. The US on the other hand, is nowadays openly discussing the use of PMSCs and because of this it is also more thoroughly documented. Thus, since commercialization of military operations is an increasing trend, the UN must also confront this topic within its own context to establish how it should be regulated and impose limitations where necessary.

Based on the topic of privatizing peacekeeping operations and the issues that coincide with it, the following problem statement and research questions were established:

How can private military and security companies (PMSCs) be used for peacekeeping operations in situations where the United Nations is incapable of forming such an operation in a timely and/or effective manner?

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3.3 Methodology and research setup

This research does not aim to prove hypotheses. Instead it examined an alternative to traditional peacekeeping, meaning that this research proposed setting up a new system that will fill the gap which the UN is currently unable to fill. The research started with discussing the theoretical framework surrounding peacekeeping and PMSCs. In this section a collection of existing literature was presented that describes the UN peacekeeping and its challenges, what PMSCs are and how IHL and IHRL apply to such companies, the perceived general benefit of and criticism towards PMSCs, and the potential of PMSCs in peacekeeping missions. An explanatory approach was taken to discuss the first three research questions, but an exploratory approach was applied for the final question. To gather the needed information for the first three questions, various primary and secondary sources were used such as primary data, reports, journals, books, newspaper articles, videos, interviews, websites, legal documents such as the Geneva Convention, UN Charter, resolutions, and more.

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SPSS. Then, the data was aggregated for analysis of the complete sample (all three countries). The results from the open questions were carefully analysed and coded, after which categories were created to be able to quantify the type of perceptions that respondents had. As this is a manual process with more room for interpretation, the presented percentages of the expressed perceptions must be considered as indicatory rather than high-validity statistical data. However, combined with the collected quantitative data, the overall result does present a valid and reliable outcome.

3.4 Limitations

In light of both effectiveness, efficiency, and reliability, it must be recognized that there were several limitations during this research. There was a wide variety of information available on both PMSCs and on UN peacekeeping. However, the combination of those two was hard to find, simply because PMSCs are still not used as peacekeeping forces. Moreover, detailed information on PMSCs largely remains a mystery as transparency of both the PMSC and the hiring government is extremely limited. This issue will be discussed later. Consequently, much of what is known about PMSCs is based on moments that PMSC activity peaked (e.g. Angola, Iraq, etc.). Mostly, these moments of activity became quite known due to the media attention it received when things did not go exactly as planned. This resulted in a very mixed debate about this topic as some have based their research on more negative findings, whereas others were more in favor of the use of PMSCs. Consequently, this made it a challenging task to rule out the subjective view of other authors when analyzing these sources. Instead, the essentials were filtered from these sources in the most objective manner possible. Concerning the available information on peacekeeping, it can be said that the topic is broad. For as long as peacekeeping has existed, it has also been debated. This meant that a careful selection had to be made which sources were most relevant for this specific topic.

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4 Peacekeeping; challenges and failures

4.1 Summary of peacekeeping reforms and the process leading up to a mission

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lead up to the deployment are not without multiple impediments and limitations. The following sections will elaborate more on the challenges that arise because of those impediments and limitations.

4.2 Self-interest and peacekeeping

It is the sole responsibility of the UNSC to determine if a peacekeeping operation will be conducted or not, as it exercises the main role for maintaining international peace and security. As a result, all other members of the UN have agreed to accept and put into action the decisions that the UNSC makes (Art.24 & 25 UN 1945). Before the UNSC decides to move on to any form of military action, it will always consider peaceful means first to resolve a dispute. However, as soon as violence erupts the UNSC has the authority to consider more severe actions (e.g. various sanctions and restrictions, deploying peacekeepers or collective military action against the peace disrupting forces) (Art.39-42 UN 1945). The decision to act is taken by 11 out of 15 member states of the UN having a seat in the UNSC. Seven of these states are elected for either a one or two-year term in the UNSC. The remaining five members are the permanent members; China, France, Russia, United Kingdom, and the United States (Art.23 UN 1945). This was determined in the early stages of the UN when these states were perceived as the ‘winners’ of the Second World War. Moreover, these permanent members have the right to veto the draft resolutions that pass through the UNSC; even if all the other non-permanent and permanent members vote in favor of a resolution. Although these permanent members have their veto, Article 27(3) does add that those members of the UNSC who are a party to the dispute, will abstain from using their vote (UN 1945).

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They argued that before a peacekeeping mission can be considered, all participants to the conflict would first have to agree to the presence of UN peacekeepers (RT 2015a; RT 2015b; BBC 2015a; ANP 2015). The US has also made a habit of using their veto. By far, most of them were for any resolution that involves the ongoing crisis in Israel and Palestine. It is a trend that can be observed with all the permanent members, as they try to protect their national interests in spite of innocent lives being lost (SCR 2015), while in reality the matters do not even directly affect the permanent members. This fear had already been widely debated in 1945 when states declared it preposterous that one permanent member could block peaceful initiatives, even if the actual parties to the conflict would be in favor of them. At that time, the fear was already expressed that the veto would ultimately paralyze the UNSC and would push states to seek alternative methods that would not include the UNSC (Wilcox 1945). As one can observe nowadays, this fear was not unfounded as NATO and US for example, have indeed acted on their own terms in the bombing of Yugoslavia and the invasion of Iraq due to this paralysis at the UNSC (Averre 2009; Bowcott 2004). This is partially due to the fact that a significant number of UN member states perceive contributing their military resources to non-UN operations as a better means to serve their national interests (Gaibulloev and Sandler 2009; Bellamy and Williams 2013a). This increased benefit stems from a states’ foreign direct investment concerns and protection of trade interests. Moreover, if a state is nearer to the area of conflict or it experiences a higher degree of destabilizing effects on its own national interests, states will be more likely to contribute troops to the mission that is most pragmatic in protecting economic and strategic concerns. UN missions on the other hand, are focused on maintaining global stability and as such it is also active in areas where few countries have economic interests (Gaibulloev and Sandler 2009). Although non-UN armed forces such as NATO are more likely to act on their own terms, the UNSC has a strict principle that it will not engage in military action unless all permanent members are on board. Not doing so might, as they argue, worsen the situation and put them upon a course of action that would potentially be irreversible (Wilcox 1945).

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about the mission during diplomatic meetings and can even give them special influence and information if they fill key positions (Coleman 2013).

4.3 Deployment time for peacekeeping operations and mobilization of troops

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Contributor Average number of troops per month in 2015 Ethiopia 7,960 Bangladesh 7,816 Pakistan 7,490 India 6,897 Rwanda 5,078 Nepal 4,312 Ghana 2,803 China 2,658 Nigeria 2,505 Indonesia 2,415 Morocco 2,302 Senegal 2,139 Tanzania 2,139 South Africa 2,118 Burkina Faso 2,105 Table 1: Contributing state and average troops per month in 2015

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4.3.1 SHIRBRIG

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environment, and much more. Thus, another option is to rely on regional quick-reaction forces (Ramos-Horta 2015).

4.3.2 Regional quick-reaction forces

Regional quick-reaction forces are forces such as the African Standby Force (ASF) and the European Union Battlegroup (EU BG). Some of these forces, such as the ASF, are even based on the SHIRBRIG model (UN 2007). In the case of the ASF and EU BG, each force reports directly to their respective union; the African Union or European Union, and can intervene in an immediate crises within 14 (ASF) and 5-10 (EU BG) days (AU 2003; EU 2013). Both forces are operational, the EU BG since early 2007 and the ASF since early 2016. However, both forces have yet to see actual mission deployment. As previous years have shown, EU missions have been sent to various countries, but the EU BG was never part of them (EU 2016; ISS 2015). The reason for this, as described by Janusz Onyszkiewicz, former Minister of Defense in Poland and former vice-chairman of the Foreign Affairs Committee of the European Parliament, is the lack of consensus of the EU member states. This is a challenge, as all members need to agree on the deployment of the EU BG. Accordingly, states would tend to hide their objections, which were based on national interests, behind different technical objections such as the required type of force or the timing of the mission. However, in reality the real reason was sometimes purely based on financial concerns as the costs of a mission are to be covered by the EU member states (Onyszkiewicz 2015). The question remains if these problems will also occur in the case of the ASF in the coming years.

4.3.3 The Chinese peacekeeping commitment

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terms of troops and police units. The system aims to improve transparency of pledges and attempts to ensure efficient and effective allocation and deployment of pledged resources (Ladsous 2015; IPI 2015). Although the contribution of China to this standby force is a noble gesture, it is not the first country to make such claims. Moreover, many of these standby forces have never been deployed (Oakford 2015). Also in this respect, the intentions of China are twofold and thus not only appear to be an attempt to boost its reputation as global security provider, but also to support and protect its own economic and political interests. Especially when looking at China’s peacekeeping history, these recent peacekeeping developments become remarkable. China’s peacekeeping contributions in the case of Mali and South Sudan confirm this contrasting image, as China had no particular economic or political interest in Mali, but it did have significant energy investments in South Sudan (Duchâtel, Gowan, and Rapnouil 2016; Fung 2016a; Jones 2015). At this moment, it is still quite unclear where China really stands in terms of its peacekeeping attitude and to what it may lead in the future. In certain events, it is an active contributor, while in other cases it may even use its veto.

4.4 Quality of peacekeeping troops

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forces with a difficult task, as has been witnessed in multiple UN missions. A more recent example of such a mission would be the one of the Stabilization Mission in the Democratic Republic of the Congo (MONUSCO) in the Democratic Republic of Congo (DRC), before the mandate was changed to allow preventive self-defense. Even though the UN force outnumbered the rebels and had better weapons, it was reluctant to respond to threats when needed (Hatcher and Perry 2012). As a result, if UN forces were expected to apply a mandate that gives more room to use force, one would argue that these troops would need special training, the right equipment, and support as well to conduct such a challenging task (Terrie 2009). Nine years after the first critical report on UN peacekeeping, by the panel of Brahimi in 2000, the UN introduced its New Horizon Initiative. New Horizon aims to reform peacekeeping in terms of policy development, capability development, global field support strategy, and planning and oversight (DPKO 2016j). Part of this was the launch of the UN Force Intervention Brigade (UNFIB) in MONUSCO as affirmed in UNSC resolution 2098 (UNSC 2013b). Its mandate allowed it to also carry out offensive actions against militia that threaten safety and stability in the DRC, with the purpose to enforce peace. As such, it was the first UN force to also conduct offensive operations. What makes the UNFIB a stronger and more capable unit, is the fact that the emphasis lies more on equipment given to and overall experience of peacekeepers, and not on the quantity of troops on the ground. This was believed to enable the brigade to cover the same mission area with half the number of peacekeepers, simply due to use of more advanced equipment that increased their maneuverability (Piiparinen 2016). To date, no other UNFIB has been set up in other UN missions.

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first to respond to the request for assistance. Thus, the French launched a military operation in January 2013, to support the Malian forces. It was not until end of April 2013 that a UN resolution for a peacekeeping mission was passed (DPKO 2016g), followed by a deployment in July 2013 consisting of 6,294 troops and police units. Remarkably, almost 99.6% of these troops came from countries that one would consider as developing countries based on the fact that their GDP per capita is below the worldwide average in 2013 (World Bank 2016; DPKO 2016l). This statistic did not change much until February 2014, when the Dutch were the first industrialized state to deploy more than 100 troops in Mali. One year later, in February 2015 and after, this force even started reaching a size of over 600 troops and several police units (DPKO 2016l). These Dutch troops were tasked with gathering intelligence and mapping the conflict environment during their reconnaissance assignments, while also training the police in Mali and helping to improve rule of law. This is a task which is largely conducted by special operations forces, intelligence staff, and police trainers, accompanied by high-tech Apache attack helicopters and Chinook transport helicopters. As the Dutch Ministry of Defense also confirms, their presence is essential as they form the eyes and ears of the entire mission (Ministerie van Defensie 2016a). The example also shows, that forces from developing countries are oftentimes not of the same quality as those from industrialized states such as the Netherlands. Thus, the lower quality forces challenge the effectiveness and efficiency of the peacekeeping mission. It is not within their capabilities to do the same complex tasks, even if those tasks are in high need. Thus, it could be argued, that the tasks of the Dutch, could best have been done early in the mission to establish a solid knowledge base on the situation that the other less specialized troops could benefit from at a later stage in the mission. Despite this logic, deployment of such specialized forces like in the case of Mali are rare. This is likely because specialized forces are perceived to be over-qualified and too costly for peacekeeping missions. However, in peace enforcement missions or volatile peacekeeping missions (instead of established missions), they could prove quite effective (Fetterly 2006).

4.5 Funding and contribution of troops to peacekeeping operations

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4.6 Chapter conclusion

The UN, initially intended as an improvement of the League of Nations, appears to run into similar complications as its predecessor. The permanent members are regularly using their veto to block resolutions that allow, or create an avenue for, a peacekeeping mission to be established. Moreover, UN member states and the permanent five of the UNSC will commonly hide their true objections against UN military action, behind whatever technical objection they can find. In many cases though, it may likely have been part of an effort to protect their own interests. It can also work the other way around, meaning that states support a mission which protects their own interests. Consequently, peacekeeping missions are only used in cases where the permanent members are likeminded. Some states do not have the patience for this frequent stalemate in the UNSC and seek a more decisive method to protect their own interests, for example by actively involving themselves in other initiatives such as NATO, or perhaps even by acting independently. The issue in this respect, is that there is an alternative outside the UN that pursues its own goals in international security, thus more or less excluding the involvement of outsiders. It resembles cowboy behavior, as the ideology of the UN as mediation platform is disregarded whenever a different, more decisive alternative suits a state better. It is a neorealist approach of such states.

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5 Characteristics of PMSCs and their status within the law

5.1 The definition of PMSCs and mercenaries

PMSCs have been around for quite some years now and the world has seen them in multiple conflict areas. As Sean McFate, associate professor at National Defense University and senior fellow at the Atlantic Council also remarked “[...] we’re starting to see real mercenaries appearing all over the world in conflict markets. Extractive industries are hiring them, NGOs are hiring them, someday the UN might hire them” (Gilsinan 2015). Nevertheless, ask a person in the street what PMSCs are and there will be a high chance that this person is not able to give a clear description of what these companies are and what they do. Moreover, there is much debate on whether these companies are mercenary groups. So, what definitions exist for PMSCs? The International Committee of the Red Cross (ICRC) describes such companies as follows:

PMSCs are private business concerns that provide military and/or security services, irrespective of how they describe themselves. Military and security services include, in particular, the provision of armed guards and the protection of persons and objects, such as convoys, buildings and other places; maintenance and operation of weapons systems; prisoner detention; and advice to, or training of, local forces and security personnel (ICRC 2013).

The International Code of Conduct for Private Security Providers’ Association (ICoCA) sticks to a more general definition for private security companies and security providers by describing that their business activities involve the “provision of security services, either on its own behalf or on behalf of another, irrespective of how such company describes itself” (ICoCA 2010). This means that it also applies to PMSCs, as the list of members to the association also includes providers of private military services (ICoCA 2016c). In Article 2 of the draft

Convention on Private Military and Security Companies (PMSCs), set up by the UN Working

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mercenaries. Moreover, the Working Group is tasked with monitoring the use of mercenaries and other activities related to mercenaries, all the while observing and studying the trends, issues, sources, and causes of mercenary activities and their effects on the preservation of human rights (UNHCR 2015).

As noted earlier, probably one of the most debated topics is whether these PMSCs can be seen as mercenaries. In 1977, the Protocol Additional to the Geneva Conventions of 12 August

1949, and Relating to the Protection of Victims of International Armed Conflicts (AP I) was

introduced. This document is related to the protection of victims of international armed conflicts. It also presents a short description in Article 47 relating to mercenaries and their status in international armed conflict. Unfortunately, the article does not manage to differentiate between traditional mercenaries and present-day contractors, leaving room for incorrect interpretation. In short, the article states that mercenaries are those who take part in hostilities for private gain (AP I 1977). Thus, the article does not go beyond describing the status of mercenaries in armed conflict, meaning that the field is left wide open in terms of measures that ought to be taken against mercenaries and mercenary-related activities. Moreover, the fact that the article only applies in international armed conflicts, means that the article is not binding in cases concerning national armed conflicts. This severely limits its power. In 2001, the 1989 International Convention Against the Recruitment, Use, Financing

and Training of Mercenaries (Mercenary Convention) came into force (UN 1989). In short, this

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the United States, United Kingdom, France, China, and Russia. In addition, many of the headquarters of PMSCs are mostly located in one of those countries that is not a member to the Mercenary Convention (ICoCA 2016d). The Netherlands, which is commonly known to be a prominent advocate of human rights and especially focuses on this in its foreign policy (Baehr, Castermans-Holleman, and Grünfeld 2002), is surprisingly enough also not a party to the Mercenary Convention.

In the end of 2003, Special Rapporteur Mr. Ballesteros presented his final report to the Commission on Human Rights. In this report, he reviewed the work that had been done since his mandate came into existence in 1987. He argued that one of the main challenges in fighting mercenary activities is the fact that the legal definition of a mercenary is unclear, limited, and ambiguous. He continued by explaining that a mercenary is someone who sells his military skills to take part in criminal activities (e.g. terrorism, drug trafficking, assassinations, abductions, etc.) (Ballesteros 2003). This statement would suggest that individuals who are hired by PMSCs to conduct operations that, according to national and international law, support the general wellbeing of all people in the world, are not to be perceived as mercenaries. As such, the Special Rapporteur concluded his report by proposing amendments to the first three articles of the Mercenary Convention to make it easier to distinguish when a person is a mercenary (Ballesteros 2003). However, the amendments did not offer any groundbreaking new insights into the differences between PMSCs and mercenaries.

5.1.1 The difference between a mercenary (as described in AP I and the Mercenary Convention) and a PMSC contractor

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protect or defend persons and/or objects. As such, fighting is a last resort. Moreover, overthrowing a government, undermining the constitutional order, or undermining the territorial integrity can be seen as an act of aggression. As such, it contrasts with the defensive purpose of PMSCs.

PMSCs are businesses, they also have a business mentality. Bad publicity can complicate doing business in the future (Akcinaroglu and Radziszewski 2012). Thus, whereas mercenaries will take a direct part in hostilities (e.g. bringing the fight to the opponent), PMSCs do not. They generally sell their services as being strictly for defensive purposes. Moreover, mercenaries are motivated to fight for private gain. This is, to certain extent, the same for PMSC contractors. They work for private companies, which have a profit motive. As such, these contractors are known to have higher wages than regular armed forces, as will be described later in Chapter 7. However, one may argue that contractors themselves are not only doing it for private gain. They may also have the same good intensions as other organizations that assist in crises. As an example, staff from humanitarian aid NGOs also regularly get paid a full salary for their efforts. This does not necessarily mean that they are only attracted to crisis because it pays. Salary may thus be a means to cover basic needs, while at the same time these people (from both NGOs and PMSCs) do what they are good at and what they believe in. Furthermore, a PMSC that devotes itself, for profit, to supporting global security and wellbeing, will not want to stain its image by recruiting, using, financing, or training of traditional mercenaries as their vision is at odds with that of present-day PMSCs.

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5.2 Formal regulation of PMSC activities

5.2.1 The normative change

The different general definitions and inability of both governments as well as international organizations to apply an appropriate set of formal regulations for mercenaries and PMSCs, shows the struggle surrounding these two subjects. Is the concept of hiring armed forces such a new phenomenon then? On the contrary. Even in the Roman empire soldiers-for-hire were used to supplement armies. During the mid-second century, Rome hired large numbers of auxiliaries from subject states and only contributed for one percent with its own legionnaires to the imperial force. These forces were hired based on the conviction that barbarians made the best fighters (Frye 2007). This means that the existence of mercenaries is not new. However, the present-day PMSC contractors are different from the traditional mercenaries. PMSCs are primarily businesses and its employees much more than mere soldiers of fortune. In their business strategies, these companies emphasize that they are private enterprises that specialize in efficiency and expertise. Moreover, these companies express that they only operate with the consent of both the receiving state and the state where the company has its headquarters. The term ‘mercenaries’ is even more seen as an insult, as this term is loaded with negative stereotypes (Adams 2002). Highlighting the difference and framing this rapidly developing trend had thus become increasingly important, as PMSCs continued to become a more accepted form of security providers throughout the world. Framing in this case, means to develop a unique interpretation of PMSCs and their practices, while at the same time indicating if the practice is acceptable and how it can be dealt with best (Petersohn 2014). PMSCs were here to, reportedly, make a positive change in difficult environments. However, according to the statement of PMSC Sandline International in which it announced the cessation of all business operations, governments were still unwilling to accept this idea (Sandline International 2004).

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difference in countries where there is widespread brutality and even genocidal behaviour is irretrievably diminished (Sandline International 2004).

Thus, what was needed was a change in acceptance, relating to PMSCs and their activities; a normative change. Norms such as specific laws or other regulatory instruments for PMSCs were absent and arguably the process of framing this trend is still insufficient and lacks accountability. However, over the years PMSCs, governments, academics, and others have shaped the arguments in favor of PMSC operations in such a way that it aligns with or comes close to the already existing norms within society. This happened despite the criticism from those who oppose the development, such as Mr. Ballesteros, the Special Rapporteur on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination. The argument which those in favor used to try and match the existing norms, was that PMSC activities were all focused on self-defense rather than offensive action. In other words, PMSCs argued to only use force if force was used upon them, or the persons or objects they protect. PMSCs are trained to push back an attack or get away from it while providing protection. They are not, however, trained with the intention to take the initiative to an enemy like regular armed forces could do (Petersohn 2014). This line is very thin and leaves room for interpretation of who engaged in an attack first (Mayer 2009; Avant and Sigelman 2010), but it does keep the balance in place, meaning that states (in theory) retain a monopoly on the general use of (lethal) force, while at the same time allowing room for PMSCs to act in exceptional cases. In reality however, there are also a few examples of PMSCs taking the fight to the enemy in Sierra Leone, Angola, and Papua New Guinea (a mission that was ended prematurely, but where offensive action was contemplated). These examples will be discussed in later sections of this research.

5.2.2 Legal status of PMSCs

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prosecution of contractors who enjoyed diplomatic immunity would only have been possible if the US had waived the immunity (Art. 32(1) UN 1964) or if the contractors were brought to trial in the US itself (Art. 31(4) UN 1964). If diplomatic immunity would not have been applied, the immunity from the Iraqi legal process, provided by the CPA, would have been meaningless. A sovereign state like Iraq would have had the right to prosecute the contractors. The US government was, supposedly, also not fully aware of any immunity being granted to contractors and described it as mismanagement by the State Department. The immunity was granted without consulting higher government officials. As such, it was assured that immunity from the Iraqi legal process, did not immunize them from federal criminal prosecution (Zagorin and Bennett 2007). Eventually, the US lifted the immunity of US contractors, thus making it possible again for Iraq to prosecute those who violate Iraqi laws. This was affirmed in the Status of Forces Agreement in 2008 (U.S. Government 2008). The Blackwater incident led to a long and complicated case which in 2014 resulted in four former contractors of the company being found guilty to the killings. Their sentence was one life imprisonment and three others receiving 30 years each (U.S. Department of Justice 2014). This incident did not just lead to prison sentences, but also led to Blackwater losing its contract with the United States (Labott 2009). The situation in Iraq gave the impression that PMSCs operated within a legal vacuum; on one hand, due to the immunity issue and on the other hand, due to the unclarity of how the various existing legal frameworks apply to PMSCs. Below, several of these legal frameworks are briefly discussed.

5.2.3 Accountability under IHL

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Other persons who are also viewed as civilians are the “persons who accompany the armed forces without actually being members thereof” (war correspondents, supply contractors, etc.) (Art. 4A(4) GC III 1949), other crewmembers accompanying armed forces “who do not benefit by more favourable treatment under any other provisions of international law” (Art. 4A(5) GC III 1949), “members of other militias and members of other volunteer corps” (Art. 4A(2) GC III 1949) and ordinary civilians who have no direct affiliation with a party to the conflict. A special status is in place for armed forces chaplains and medical staff, who are perceived as members of the armed forces. They are not allowed to partake in hostilities and receive a milder version of POW status which will enable them to continue providing medical care of, or religious ministration to other POWs (Art. 43(2) AP I 1977; Art. 33 GC III 1949). One could argue that PMSCs would thus be best categorized as persons accompanying the armed forces ((Art. 4A(4) GC III 1949). Evidence for this could be based on the armed forces directives (e.g. Status of Forces Agreements) of various states, that clearly authorize PMSCs to accompany their armed forces (Cameron and Chetail 2013, 420). As much as this may be true, accompanying an armed force does not mean they are part of that armed force and as such these PMSC contractors are not to carry weapons and participate in hostilities. According to Article 43(2) (AP I 1977), this is a right that only combatants have and as such it is widely accepted that Article 4A (4) suggests that these persons are not to engage in hostilities as the article refers to these persons as civilians (Cameron and Chetail 2013, 395). As a result, this article would best apply to unarmed contractors (e.g. logisticians, engineers, etc.) that accompany the armed forces. If contractors do engage in hostilities, they fail to be recognizable as lawful civilians and risk being targeted by the opposition. Moreover, once captured, they could lose their right to POW status. This would be the case for those civilians who are identified by the opposition as mercenaries, spies who are caught in the act, or any civilians who cannot be identified as belonging to the ‘levée en masse’, a militia, volunteer corps, or organized resistance movement (Rule 106-108, Henckaerts and Doswald-Beck 2005). Especially in the case of the militias, volunteer corps, and organized resistance movements, it would mean that they have to comply to the five conditions set out in Article 4A(2) of the Third Geneva Convention (GC III 1949). These conditions state that they:

1) belong to a party to the conflict;

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3) have a fixed distinctive sign, such as a logo, flag, or emblem, which can be identified from a distance;

4) do not conceal their weapons;

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have a distinctive sign as required under Article 4A(2). An example of this may be the way these contractors dress. Some are in civilian clothing, while others wear more military-like attire. Neither do they carry their weapons openly at all times. Due to their work as security operators, who also escort high value political figures, it may be desirable to maintain a low profile in certain environments (Higate 2012). Even for the last condition of Article 4A(2), the adherence to the laws and customs of war, it can be said that this has not always been the case. One could take the Nisour Square killings as an example when those laws were violated. However, a few rotten apples do not mean that the entire PMSC industry presents lawless behavior and as such this condition should be examined on a case-by-case basis. To avoid obfuscating the status of PMSC contractors in armed conflict, contractors would best be placed under Article 4A(1) (GC III 1949), which refers to members of militias or volunteer corps who are part of the armed forces. However, this would require them to be incorporated into the armed forces of a state. In this case their engagement in hostilities can be considered as lawful due to their combatant status and their obligation to adhere to military law. Incorporation into the armed forces would increase transparency. Not incorporating them, would ultimately keep the obfuscation around the use of PMSCs in place and would only enable governments to avoid responsibility (Hoppe 2008).

5.2.4 Accountability under IHRL

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be prosecuted by ad hoc criminal tribunals or the International Criminal Court for committing severe systematic international crimes (e.g. genocide) (ICRC 2003). However, this only applies if circumstances allow it (if a state is a party to the Rome Statute or if it accepts ICC jurisdiction) or call for it (through UNSC referral). In all other cases, individuals must be prosecuted for human rights violations under domestic law (ICC, n.d.). The problem with PMSCs under IHRL is that they can respond with force when they or their objective is being attacked. One could say that they act in accordance with self-defense, but the fact of the matter is that they are most commonly not incorporated into the law enforcement or military of a state. This was also the case for Blackwater in Iraq. As such, this does not give PMSCs the right to systematically respond with force when they themselves or their objectives are attacked. Reason being, that it is not the core responsibility of PMSCs to protect the right to life, liberty, and security of individuals. This is the core responsibility of governments according to the Universal Declaration of Human Rights and the International Covenant on

Civil and Political Rights (UN 1948; UN 1976). In response to globalization and the increase in

activities of transnational corporations, the UN mandated a working group to establish a framework that would be able to manage corporate activities and human rights challenges in a better way. The result of six years of work are the Guiding Principles on Business and Human

Rights and was endorsed by the UNHRC in 2011 (UNHRC 2008; UN News Centre 2011; Ruggie

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Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights were not received well. The norms affirmed, in contrast to the

guiding principles of Ruggie, that it was indeed an obligation of corporations to respect IHRL. The proposal of such obligations resulted in corporations labeling it as an attempt to shift primary responsibilities of governments to corporations (Kenan Institute for Ethics 2012). This displays that corporations prefer flexibility over regulation, which consequently means that it remains a question of willingness to comply to IHRL. As such, it is more effective to hold corporations accountable for their actions under the domestic laws applicable in the home country of the corporation.

5.2.5 Accountability at a national level

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5.3 Regulation outside the law

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Providers (ICCPSSP) that was finalized in 2010. The standards formulated in the ICCPSSP are

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themselves as a form of corporate social responsibility. Another large association for PMSCs, the International Stability Operations Association (ISOA), is an example of this growing trend of PMSCs wanting to become new humanitarians, as the association changed its name from the International Peace Operations Association (IPOA) to its current name (Joachim and Schneiker 2012). Nevertheless, this trade association appears similarly toothless due to its inexistence of enforcement mechanisms. A simple search on their website reveals that any person or organization can file a complaint, but a functionality to do so is absent. Moreover, the ISOA does not describe how it deals with complaints if they are filed. The organization merely states that it will be considered by a Standards Committee (ISOA 2016).

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5.4 Chapter conclusion

The descriptions of mercenaries in the First Protocol Additional to the Geneva Conventions and the 1989 International Convention Against the Recruitment, Use, Financing and Training

of Mercenaries, only show limited similarities with the characteristics of PMSCs. As such, the

additional articles in the Mercenary Convention, which describe how states should deal with mercenaries, would not apply to PMSCs. Consequently, PMSCs are at risk of being generalized as mercenaries, while this wording carries negative connotations. This stigmatizes the practice of PMSCs and thus evokes a certain unjustified bias about the PMSC industry as a whole. This puts PMSCs in potential danger of being wrongly labeled as mercenaries and thus receiving an unfair trial if they are detained. Moreover, the inexistence of specific norms applying to PMSCs in terms of international law, may give the impression to the public that PMSCs are enabled to evade the law. However, this is not completely true, as the sending state could, if it deems it necessary, still prosecute the PMSC contractors for criminal conduct. An example of such was witnessed after the Nisour Square shooting.

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this article to be successfully applied, it would require PMSCs to be incorporated into the armed forces for the duration of a deployment. Incorporation could end the obfuscation around the use of PMSCs and would require governments to take responsibility for the actions of PMSCs. On the other hand, it also increases the resemblance of PMSCs with mercenaries as they match another criterion that is elaborated in the First Protocol Additional and the Mercenary Convention. This criterion states that a mercenary is not a member of the armed forces of a sending state that is not a party to the conflict. This once again emphasizes the need for a set of international laws that apply specifically to PMSCs as to make a clear distinction between mercenaries and PMSCs.

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6 PMSCs: to use or not to use?

6.1 Challenging the different perceptions

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other areas (Østensen 2011). In this regard, it means that some ‘consumers’ will be at a higher risk of exposure than others. This variability does not make security a private good per se, but it does prove that security is not always available to all. Regardless of the discussion about to which extent security can be seen as a public good, Barnes (2013) nevertheless neglected the risk of security gaps. He stated that filling this gap by outsourcing security to PMSCs, is a way of delegating a core responsibility of the government. By delegating this core responsibility, it also becomes harder to trace back the actions of PMSCs to the government, making it difficult to hold them accountable (Hoppe 2008). In the view of Barnes (2013), this makes it seem like citizens of a state are not entitled to security, despite being a member of that state. With this statement, he insufficiently recognizes the idea that a government might have sought assistance from PMSCs to guarantee equal provision of security in the first place. Furthermore, he extensively debates a long list of risks posed by outsourcing security to PMSCs in the current, still largely unregulated, setting. He discusses misconceptions of the benefits of hiring PMSCs, the costs related to hiring PMSCs, the various costs and risks for governments to do business with PMSCs, the issues relating to control of the privatization of security, the challenges relating to PMSCs and the changing international landscape, further challenges surrounding the debate of public and private security, and lastly the grey areas surrounding PMSCs and the legal definition of combatants and noncombatants. Although a series of plausible arguments are made, Barnes still does not manage to fully encompass the topics from other points of view, thus disregarding the solutions to the challenges and ignoring the fact that in some cases PMSCs are the only second-best option. If the circumstance arises that the international community is either unable or unwilling to respond to humanitarian crises fueled by conflict, an alternative such as PMSCs ought to be at least considered. When security risks become evident or gross violations are unfolding, one could contend that it is better to do something than do nothing at all (Bures 2005).

6.2 Effectiveness and efficiency of private military companies

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will still contribute their part to security, while in reality it has been outsourced significantly (Leander and Spearin 2013). An example of such can be seen in the Italian approach to solving the maritime security issue. After much debate, the Italians decided that PMSCs may take part in providing maritime security services. However, they would only be allowed to do so if the military’s own Vessel Protection Detachment (VPD) would be unavailable to provide security services when requested by ships. This hybrid form of security resulted in 50 PMSC escorted missions and 300 VPD escorted missions between 2012 and 2015 (Cusumano and Ruzza 2015). The risk of this European trend of privatization of security, is that the public is under the impression that debate on privatization of security is unnecessary while it has implications for the future of regulation of the use of force (Leander and Spearin 2013). One thing is for certain, with the current developments in the provision of security services, Weber’s (1946) theory on the monopoly on the use of force seems to be undergoing a major revision.

6.2.1 Flexibility of hiring PMSCs

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days (Axelrod 2014, 207–9; Douglas 1999). These and many other operations where PMSCs are involved, give the hiring state the potential to act in crises when deployment of its own defense forces is already at its limits. The US have done this in both Iraq and Afghanistan, and as such it was able to meet battlefield requirements with these additional resources. However, it must be considered that these operations do not come without its risks, as proper regulation is still a questionable topic (Lovewine 2014, 135–50).

6.2.2 Saving costs by outsourcing to PMSCs

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service is compulsory, also in those that partake in peacekeeping missions (CIA 2016). As such, this is a choice that the hiring state or organization will have to make, based on the judgement if the benefits outweigh the costs (Hartley 2004). Nevertheless, it is expected that the PMSC industry will remain a growing trend in the years to come, filling the gaps or niches that come into existence as governments downsize their militaries. As a result, the PMSC industry will continue to develop itself through mergers, flexibility, and acquisitions in order to become a more competitive supplier in the market (Curtis, Marko, and Parma 2009). Some scholars argue that the market for PMSCs is insufficiently competitive. Moreover, some claim that it may even be in the interest of PMSCs to prolong a conflict as it would result in a greater necessity for security services, thus essentially stimulating their own industry (Singer 2003, 157). Another point of concern would supposedly be the shareholders of PMSCs, as they may have no interest in ending the conflict as their main interest is the profit of the PMSC (Barnes 2013). However, these arguments seem quite speculative, especially when considering that not living up to expectations of the hiring state may ultimately ruin the chances of acquiring a contract in the future. Even more so, it could mean that their contract gets terminated prematurely. To guarantee this flexibility for hiring states in terms of contracting, it is recommended to hire multiple PMSCs instead of focusing on just one. While it could be argued that hiring more PMSCs has a destabilizing effect, it can also encourage optimal delivery of services as contracting only one PMSC would leave the hiring state and receiving state in the vulnerable position where a PMSC can pull back its personnel on short notice when it decides to terminate a contract (Akcinaroglu and Radziszewski 2012). However, the challenge in this respect, is that composite units also require more coordination, which is undesirable in volatile environments. This is a challenge that also the UN faces when it combines forces from many different states (Coleman 2013).

6.2.3 Avoiding politics and bureaucracy

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Actually, those private owned companies are everywhere. They provide not only direct physical security, as it was the case during the construction of the road between Kabul and Kandar [sic], during which huge amounts of money were injected to guarantee the protection of those who worked on that road during two full years. They also operate less directly in election times for example. […] Those companies operate for instance, in the police reform, or even in the police training policy. They also operate in the fight against drug trafficking. Generally speaking, those firms are financed by the international community. In agreement with financial backers, they offer training on hot potato issues (Forestier 2007).

The use of PMSCs for assignments could thus be perceived as an outcome. However, this avoidance strategy can also lead to undesirable use of such companies. In a special written by Chatterjee (2004) about the use of contractors in Darfur, he quotes a senior US government official who stressed this point. Although the intention of the CIA was perhaps good in this case, it also shows a serious lack of transparency and clear undermining of government regulations.

Why are we using private contractors to do peace negotiations in Sudan? The answer is simple…. We are not allowed to fund a political party or agenda under United States law, so by using private contractors, we can get around those provisions. Think of this as somewhere between a covert program run by the CIA and an overt program run by the United States Agency for International Development. It is a way to avoid oversight by Congress (2004, n.p.).

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6.3 Chapter conclusion

One could argue that there are three main motives why states decide to hire a PMSC to do a job or to supplement their own armed forces. These motives are 1) flexibility, 2) cost saving and 3) avoiding politics and bureaucracy. PMSCs offer a high degree of flexibility to states. They can be hired when necessary and let go if no longer needed. They are fast to deploy, versatile, highly trained, and carry with them advanced equipment and weapons; all factors which make the PMSC a dominant force in even the most complex conflict environments. At the same time, the flexibility of the PMSC reduces the long-term costs for states. Standing armies cost governments billions of dollars, but by making niche tasks redundant, they are able to save costs. Only when needed, can these PMSCs be called to help and tend to that niche. This will surely be a costly contract, but it is possible that the benefits outweigh those short-term costs. The third motivation is politics. Even though it cannot be said that PMSCs are equal to mercenaries that fight the wars of others, it can be observed that they do tend to get themselves involved in conflict environments that governments have been hesitant to deal with. As such, PMSCs offer the hiring state a wild card, that allows them to avoid being constrained by politics or bureaucracy. These constraints could involve the fear of public opinion at home, the fear of overstretching the national defense forces, the fear of getting involved in a bloody war where the national defense forces lose lives, and many other reasons. Some may even argue, that states use PMSCs to avoid certain interventions getting traced back to the hiring state, as it complicates proving direct involvement. Such sensitive missions are more likely to be covert or kept low-key, as it would otherwise attract attention from the public. Attracting the attention of the public, would thus defeat the purpose of avoiding direct involvement. All missions that are openly conducted by PMSCs, will attract attention, for example from the media. As such, the historical PMSC presence in Angola, Sierra Leone, Afghanistan, Iraq, and many other conflict environments, could always be traced back to a hiring state. Perhaps not immediately, but eventually the truth could be uncovered. Consequently, secrecy may prove beneficial at first, but can have serious negative effects on the long run for government relationships with other states and the relationship of a government with their public.

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7 PMSCs as UN peacekeepers

7.1 Comparing previous failures and successes

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UN budget; something that may potentially leave the possibility for member states to object to the idea (Kaysen and Rathjens 1997; Urquhart 1993). Especially in light of statements made by the UN itself about the financial issues revolving around a UN standby force (DPKO 2016f), it would seem unlikely that the UN is willing to raise their game to such extent. Nevertheless, there is a need for an impartial force which will be less affected by the neorealist stance of states, in order to guarantee the most effective use of force whenever it needs to be applied. The hesitance of states to apply appropriate action, will only put the belligerents in a stronger position as they know that there are little consequences for their actions (Terrie 2009). In an interview with The Guardian, Asoke Kumar Mukerji, the Indian ambassador to the UN, underlined that he perceived the UN peacekeeping soldiers as impartial and emphasized that they are not supposed to choose sides in a conflict. He went on by emphasizing that if soldiers are expected to fight in such missions, then the UN should hire mercenaries instead. According to his government, if peacekeeping would need to be enforced, it would not be acceptable in terms of adherence to the UN charter (McGreal 2015). However, as pointed out in Chapter 4, this perception of impartiality is a misinterpretation of its meaning. Impartiality enables the UN to use force when necessary, as long as the infractions of all parties to the conflict are dealt with equally (Tsagourias 2006; DPKO 2016i). Despite this clear definition, the recent statement of the Indian ambassador points out how misinterpreting the impartiality of UN peacekeepers, who are contributed by member states, can form a dilemma in enforcing a stronger mandate. The larger troop contributors do not hide their concerns about undertaking more robust peacekeeping missions (Daniel 2013, 22). To analyze this more thoroughly, this research puts forward three cases; 1) the Rwandan genocide and the UN intervention that did not come, 2) the conflict in Yugoslavia and the weak UN response to a Serbian advance, and 3) the mission of Executive Outcomes in Angola. All three events took place in the period between 1993 and 1995. Their examples aim to show that a hesitance of states to get more involved in resolving a crisis, can lead to the deterioration of that crisis, while decisive action could reduce the capabilities of peace-obstructing forces.

7.1.1 The Rwanda genocide