The Anti-Mercenary Norm and United Nations' Use of Private Military and Security Companies.
In this article, we examine the recent profound changes in the United Nations' use of services provided by private military and security companies (PMSCs). (1) Historically, the UN played a prominent role in both the institutionalization of the anti-mercenary norm and its linkage to the norms of self-determination and decolonization. Since the 1960s, the UN General Assembly has passed more than 100 resolutions criticizing mercenaries. For example, according to the 1976 resolution on the "importance of the universal realization of the right of peoples to self-determination," which has been reaffirmed annually until 2005, the use of "mercenaries against national liberation movements and sovereign states constitutes a criminal act and... mercenaries themselves are criminals." (2) The UN Security Council also adopted several resolutions against mercenary action already in the 1960s and 1970s, condemning states that persist in permitting or tolerating the recruitment of mercenaries. (3) Similar statements can be found in numerous reports of the former UN special rapporteur on mercenaries, Enrique Ballesteros, who considered PMSCs the "new operational model of mercenarism" that threatened the civilian populations, peace, and states' sovereignty. (4) These resolutions and reports set the stage for further legal institutionalization of the anti-mercenary norm, as manifested in the 1989 UN International Convention against the Recruitment, Use, Financing and Training of Mercenaries. Moreover, they also influenced the thinking of senior UN officials in the Secretariat and key UN agencies, who had not seriously considered the use of PMSCs' services in the 1990s and 2000s, albeit the possibilities of using private force had been mooted on several occasions within the UN system. (5)
As of 2018, however, all parts the UN system, including its humanitarian, political, and peacekeeping missions, routinely use a wide variety of the services of PMSCs worth several hundred million dollars annually (see Figures 1 and 2). The special rapporteur's position no longer exists and, although its replacement is still called the Working Group on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self-Determination (hereafter Working Group on the Use of Mercenaries) and many of its members have been critical toward PMSCs, its latest reports have primarily focused on guidelines and regulations of PMSCs' activities at both the national and international level. Moreover, in May 2011 the Secretary-General for the first time publicly announced that the UN can resort to using the services of armed PMSCs as the last resort, due to the increasing demand for UN action in highly insecure (post) conflict areas and the continuing lack of supply of protection for UN personnel and operations by the host countries or other UN Member States. (6) The UN Department of Safety and Security subsequently published the first official UN policy (7) and specific guidelines on the use of PMSCs' services. (8) All of this indicates that the use of PMSCs by the UN is nowadays presumed to be acceptable. (9)
In this article, we therefore ponder why the UN has shifted its position on the use of PMSCs so dramatically? Since the UN played such a prominent role in the twentieth-century institutionalization of the anti-mercenary norm, we primarily focus our analysis on the influence of this norm on the UN's direct use of PMSCs' services. Following Sarah Percy's constructivist approach, our analysis therefore focuses on violations of the anti-mercenary norm within the UN system and the justifications and condemnations of these violations by UN officials. This is because, according to Percy, violations, justifications, and condemnations of the norm can provide evidence for its influence in three ways. (10) First, by examining the frequency and nature of violations, and finding explanations for them, we can show how important a norm is. Second, the reaction to the violations of a norm is extremely important--condemnation of the violations is a sign of the continuing impact of the norm while lack of reaction or support for the violations indicates a recess of the norm. Third, the justifications forviolations of a norm provide empirical data foranalysis of the motives behind justifications, which can reveal the (lack of) importance of the norm. Moreover, the specific aspects of justifications point to which elements of the norm are most significant.
The structure of the article is as follows. In the next section, we introduce the anti-mercenary norm and discuss its relevance to contemporary PMSCs. In the third section, we analyze the violations of the anti-mercenary norm by the UN. In the fourth and fifth sections, we explore the official UN justifications and condemnations of these violations, respectively. In the sixth section, we discuss our key findings and their implications. In the last section, we conclude that the anti-mercenary norm is no longer puritanical when it comes to the UN's use of PM SCs. Beyond departing from key elements of the anti-mercenary norm, the official and widespread use of PMSCs by the UN undermines its long-established identity as a key anti-mercenary norm entrepreneur and also its ontological security.
2 The Anti-Mercenary Norm
"For as long as there have been mercenaries, there has been a norm against mercenary use." (11) This opening statement from Percy's book Mercenaries: The History of a Norm in International Relations highlights the long pedigree of the international norm of opposition to mercenarism, whose origins can be traced as far back as the twelfth and thirteenth centuries. Nevertheless, albeit it is possible to trace different variants of this norm throughout history, Percy contends that there is "a clear thread of continuity between the pre-nineteenth century variants of the anti-mercenary norm and those of the twentieth and twenty-first centuries" when it comes to its two key aspects: (1) the belief that mercenaries are negative actors because they do not fight for the proper cause and, as a result, undermine the group that hires them; and (2) the belief that mercenaries are uncontrolled and, as a result, undermine the role of the state as the primary holder of the monopoly of the use of force. (12) Moreover, while acknowledging that this norm "cannot explain all aspects of state behaviour," Percy further argues that the anti-mercenary norm "is neither epiphenomenal nor merely an intervening variable" because "it has shaped state interests in such a way that the use of private force has been restricted and the opportunities for mercenaries themselves have been constrained." (13) In fact, by the 1990s, the norm had become so strong and internalized that its influence on policy was "puritanical, in that its influence [appeared] to be automatic and no longer tied to the facts," (14) prompting states (and other actors) to behave irrationally in terms of cost-benefit analysis of the use of private force (i.e., against the logic of consequences).
While there are other accounts of the history and the influence of the anti-mercenary norm, (15) we follow Percy's approach because, by singling out only two aspects of the anti-mercenary norm (a larger group cause independent of personal profit motivation and the control of the proper authority) as crucial, it allows for the analysis of the norm's influence on the use of private force in different historical periods. Specifically, Percy argues that although twenty-first-century PMSCs should not be considered mercenaries because they associate themselves with a larger group cause and they are under "tight" state control, (16) they "do not avoid the anti-mercenary norm entirely." (17) As a consequence, neither the presence of a sizable PMSCs industry, nor the fact that powerful states are eager to use its services, "poses a major challenge to the continued influence of the norm against mercenary use," which continues to shape the opportunities available to PMSCs and the ways that states and other actors use their services. (18) Percy's approach therefore offers a plausible way out of the hitherto inconclusive terminological debate that is fundamental for all assessments of the proscriptive scope of the anti-mercenary norm--while some would concur with the former UN special rapporteur on mercenaries that PMSCs are little more than corporatized mercenaries and thus deserve the accompanying moral and legal opprobrium, others would maintain that PMSCs are legitimate military and security service providers, capable of self-regulation under industry codes and (inter)national regulatory initiatives. (19)
In this context, it is important to note that, with the exception of the Working Group on the Use of Mercenaries, the UN has always stressed that it uses only defensive security services of private security companies (PSCs) and not military services of private military companies (PMCs). (20) While this is empirically correct in most cases where the UN directly hires security services (see below), these same companies are also known to provide military services to other clients in the same areas of operation. Thus, in line with the current academic literature and the 2008 Montreux Document, (21) which summarizes the pertinent international legal obligations and good practices for states' use of private security services, in this article we use the umbrella term private military and security companies.
3 Violations of the Norm: UN Use of Private Military and Security Companies
Internal UN reports (22) and external studies (23) have established that contracting the services of PMSCs is nowadays a common and systemwide practice of most, if not all, UN agencies, funds, programs, departments, country teams, and local duty stations. They have used PMSCs for a wide range of services, including both armed and unarmed security, risk assessment, security training and management, logistical support, base construction, transportation, convoy protection, consultancy, and other specialized services such as demining, election support, strategic information gathering, and security sector reform. The use of PMSCs' services has also been documented in all types of UN field missions, including humanitarian, political, and peacekeeping missions. However, despite calls and proposals for rather extensive PMSCs' operations to remedy UN Member State inaction, (24) PMSCs have thus far not been directly contracted as frontline peacekeepers by the UN.
When it comes to the UN's direct use of PMSCs' services, specific data has thus far been published in only two UN reports. In December 2012, the annexes of a report by the Advisory Committee on Administrative and Budgetary Questions for the first time offered concrete information regarding the numbers of armed PMSCs' personnel used in UN political missions and peacekeeping operations in 2012-2013, including company names and UN General Assembly approved budgets. Specifically, the report indicated that 42 PMSCs were under contract with UN missions and operations as of October 2012, employing over 5,000 armed private guards, with a total budget of $30,931,122. It also showed that contracts for armed guards were estimated at $40,914,000 for 2013-2014, with a large portion linked to new contracts for the UN Assistance Mission in Somalia. (25) The lists of both political and peacekeeping missions also revealed that, while the UN primarily used armed PMSCs' services in complex (post) conflict settings in Africa (fifteen countries) and the Middle East (three countries), private security was also procured for the UN Global Support Center in Spain.
However, closer scrutiny of the 42 PMSCs listed in the annexes of the 2012 Advisory Committee report reveals that their authors ("representatives of the Secretary-General") (26) were not well versed in the complex global nature of the PMSCs' business. While they informed the committee that the UN system had "only one contract with a large multinational armed private security company" (27)--namely, IDG Security in Afghanistan--they listed in the annexes several contracts for armed private security with local branches of G4S, the largest PMSC in the world, in Cameroon, Haiti, and Kosovo. (28) This, in turn, suggests that while the UN may have a "policy of contracting primarily with locally registered companies or companies that have local partnerships" so that most security-related contracts would go to local providers, (29) in practice many contracts had been awarded to local branches of global PMSCs registered under different names. This is also apparent from the official UN list of all companies registered as a supplier to the UN Secretariat (UN headquarters, offices away from headquarters, regional commissions, special tribunals, and field missions), which includes many major British and US PMSCs, including Aegis Defence Services, Gray Security Services, Hart Security, Specialist Gurkha Services, MPRI, and Olive Group. (30) This information supports the findings of two external studies that found that the UN typically uses major PMSCs for longer periods (several years in a row) rather than for short-term, quick deployment "temporary" solutions, (31) and that several major US and British PMSCs "feature prominently in UN contracts," a result of "pre-qualifications, preference for companies which have local partnerships, personal preferences or connections, urgency, or a combination of these factors." (32)
The second UN report with specific data on the UN's contracting of PMSCs is the August 2014 report of the UN Working Group on the Use of Mercenaries. While not providing lists of PMSCs' contracts in different UN missions, the report stated that as of May 2014, thirty unarmed and armed companies had been used in peacekeeping missions and political missions. It further specified that the UN used armed PMSCs in three countries and unarmed PMSCs in twelve countries where there were peacekeeping missions and eleven countries where there were special political missions. However, the report specifically listed only the 12 peacekeeping missions and 1 facility of the Department of Field Support, claiming that of the total of 4,412 security guards contacted by these 13 entities, only 574 were armed. It then also stated that from the total estimated budget for 2013/2014 for the use of PMSCs, approximately $42,125,297, $14,015,520 was for "armed services" in just 2 missions--UN Stabilization Mission In Haiti ($5,125,200) and UN Assistance Mission in Afghanistan ($8,890,320). (33)
Thus, not only does there appear to be a discrepancy within the reported figures regarding the number of missions/countries where the UN used armed PMSCs in the 2014 Working Group on the Use of Mercenaries report but, moreover, these figures are much lower than the figures reported in the October 2012 Advisory Committee report (see above). Since it appears unlikely that the UN's use of armed PMSCs would go down from 22 missions to just 2 or 3 and that the number of armed security guards in these missions would drop from over 5,000 to less than 600 in the course of less than 2 years, one has to wonder about the accuracy of the data presented in these UN reports. In addition to terminological issues (PSCs vs. PMCs; see above), a plausible explanation for the substantial differences in the data presented in the 2014 Working Group on the Use of Mercenaries and the 2012 Advisory Committee reports is their haphazard compilation. For example, although the 2012 report was supposed to list contracts with "armed private security companies" at UN political missions and peacekeeping operations, it also included contracts for the "provision of explosive detection devices" and "canine services." (34)
To complement the problematic data from UN reports on the direct use of PMSCs' services by the UN Secretariat and political and peacekeeping missions, we searched the Annual Statistical Reports on UN Procurement and the statistics provided by the UN Procurement Division. Since 2009, the Annual Statistical Reports have included data for two further unspecified categories of "security services" and "security and safety equipment" and, as such, they offer insights on all security outsourcing by the entire UN system. Importantly, this includes data for most of the key UN funds, programs, and agencies, which tend to procure their own contracts with PMSCs. In contrast, the statistics provided since 2007 by the UN Procurement Division has included data for security procurement of UN headquarters and local UN missions only.
FIGURE I Annual statistical report on United Nations Procurement figures for security services and equipment (2009-2016) 2009 44 82 26 2010 76 107 183 2011 114 151 265 2012 91 124 215 2013 219 266 485 2014 210 291 501 2015 174 225 339 2016 585 72 656 Note: Y axis shows the annual UN expenditures in millions of dollars, rounded to the nearest million. X axis indicates the relevant year. First column from the left represents UN expenditures for security services, second column represents UN expenditures for security equipment, third column shows total UN expenditures for security services and equipment in the given year. PREPARED BY THE AUTHORS USING DATA FROM THE ANNUAL STATISTICAL REPORT ON UNITED NATIONS PROCUREMENT FROM 2009-2016, WWW.UNGM.ORG/PUBLIC/ASR. Note: Table made from bar graph.
Albeit the data in the annual UN Statistical Reports and the UN Procurement Division databases may be incomplete and the specific figures that they provide often differ, (35) they do allow for tracking the overall trends of UN expenditures on security procurement over the past decade. As indicated in Figure 1 there has been an overall 521 percent increase in the UN's total expenditures on security services and security equipment contracting between 2009 and 2016. Even more remarkable is the overall 1,440 percent increase in the total expenditures on security procurement by UN headquarters and local missions between 2007 and 2016 captured in Figure 2, albeit much of it is due to the sharp rise of security procurement by UN headquarters between 2015 and 2016. In the absence of any explanations provided by the UN, we speculate that this hike, as well as the sharp drop in expenditures for security equipment within the entire UN system from 2015 to 2016 depicted in Figure 1, is primarily due to changes in the terminology or methodology used to compile the relevant UN statistics. (36)
FIGURE 2 UN headquarters and local missions' procurement of security services and equipment (2007-2016) 2007 4 16 20 2008 0 0 0 2009 5 22 27 2010 4 26 30 2011 2 44 46 2012 3 41 44 2013 3 34 37 2014 5 51 56 2015 14 57 71 2016 217 71 288 Note: Y axis shows the annual UN expenditures in millions of dollars, rounded to the nearest million. X axis indicates the relevant year. First column from the left represents UN headquarters' expenditures for "security and safety services and equipment," second column represents UN local missions' expenditures for "security and safety services and equipment," and third column shows the total UN headquarters' and local missions' expenditures for "security and safety services and equipment" in the given year. No data is available for 2008. For 2016, all columns provide data for expenditures for a further unspecified category titled "security." PREPARED BY THE AUTHORS USING DATA FROM THE UN PROCUREMENT DIVISION WEBSITE FROM 2007-2016, WWW.UN.ORG/DEPTS/PTD/PROCUREMENT-BY-COMMODITY-TABLE-DETAIL/2016. Note: Table made from bar graph.
4 Justifications for the UN's Use of Private Military and Security Companies
In contrast to numerous arguments advanced in favor of the UN's use of PMSCs' services in the academic literature, (37) the aforementioned official UN reports have specifically advanced only two interlinked justifications of the proliferation of private security procurement in the past decade: (1) an ever increasing demand for UN delivery on the ground in increasingly complex (post)conflict areas, which represent the riskiest operational environments; and (2) the absence of other means to ensure the protection of UN personnel, premises, and operations by the host country, other Member States, or the UN system in such environments.
The former justification has its origins in 2009 when the UN system Chief Executives Board for Coordination (CEB) adopted a new strategic vision that instituted a major policy shift in UN security management from a "when-to-leave" to a "how-to-stay" approach. (38) As a consequence of this shift, "the UN does continue to work in areas that we probably would not have worked in 10 [or] 15 years ago." (39) However, similar to other actors operating in insecure conflict areas, the UN has increasingly suffered attacks against its personnel and premises--between 2003 and 2014, 567 UN civilian staff were attacked and over 200 killed, most of them in Afghanistan, Algeria, Iraq, Nigeria, Timor-Leste, and Somalia. (40) As a consequence, a growing number of UN staff have come to believe "that the United Nations is no longer a shield but a target" and that "the Organization lacks the internal capacity to provide for the safety and security of its staff deployed in highly volatile environments." (41)
Ultimately, such concerns about the lack of security of UN staff and premises have prompted the Secretary-General to "review the appropriateness of the use of armed private security companies and their personnel." In May 2011, "on the basis of consultations within the United Nations system," the Secretary-General decided "that the Organization should resort to the use of armed private security companies and their personnel only as the last option to enable United Nations activities in high-risk environments... when a United Nations security risk assessment had concluded that other alternatives... were insufficient." (42) Although the UN has been using PMSCs' services since the 1990s, (43) and in 2011 alone it spent almost $114 million for security services (see Figure 1), this represented the first official public acknowledgment on behalf of the UN system. Moreover, the Secretary-General explicitly justified the contracting of PMSCs as a last resort measure, when no other alternatives are available to protect UN staff and premises.
However, since the use of PMSCs' services was not an officially recognized option before May 2011, the UN lacked an official policy and coherent systemwide guidelines for the use of PMSCs' services, and different parts of the UN system had adopted their own position on this issue. Thus, shortly after the Secretary-General formally approved the use of PMSCs, a working group of the UN Inter-Agency Security Management Network, with representatives from relevant departments, funds, and programs as well as the two UN staff federations, was convened to produce a new UN policy and new guidelines on the use of PMSCs' services. (44) Published in November 2012 by the UN Department of Safety and Security, the policy specifies that the UN system may use services provided by armed PMSCs only to protect UN personnel, premises, and property and to provide mobile protection for UN personnel and assets. In line with the earlier decision by the Secretary-General, it stresses that the use of armed PMSCs "may be considered only when there is no possible provision of adequate and appropriate armed security from the host Government, alternate member State(s), or internal United Nations system resources." (45) It also specifies that PMSCs hired by the UN are required to provide confirmation, in writing, of compliance with a mandatory screening process and are asked to develop and implement company policies on the use of force, firearms management, and weapons manuals. These policies must conform to the national laws of the home and host states, and should be consistent with the International Code of Conduct for Private Security Service Providers (ICoC). (46) The guidelines outline the procurement process, including the establishment of a model contract, statement of works, and the mechanisms for ensuring accountability at all levels within the UN security management system. They also specify that armed PMSCs' guards can be used to "provide a visible deterrent to potential attackers and an armed response to repel any attack" in only two cases: (1) for static protection of UN personnel, premises, and property; and (2) for mobile protection of UN personnel and property. Although the guidelines give an overview of the basic functions that these services encompass, they do not specify which services cannot be outsourced to PMSCs. (47)
The increasing emphasis on regulation of PMSCs is also apparent from content analysis of reports by the Working Group on the Use of Mercenaries, the only UN body specifically tasked with covering the activities of traditional mercenaries and, since September 2014, PMSCs. (48) While its initial reports (published from 2005 to 2008) largely echoed the self-determination, national sovereignty, and human rights violations critiques from the annual reports published by the working group's predecessor--the special rapporteur on use of mercenaries--from 2008, the focus has gradually shifted to regulation of PMSCs' activities. (49) Thus, instead of describing the problematic activities of PMSCs and cataloging various human rights violations committed by their employees, the working group has increasingly focused on analyzing existing national legislation and relevant international treaties. Regarding the latter, it has repeatedly pointed out the need for a new international legally binding regulatory instrument that would replace the largely ineffective 1989 UN International Convention against the Recruitment, Use, Financing and Training of Mercenaries. In 2009, pending a request by the Human Rights Council, the working group presented such an instrument--the UN Draft International Convention on the Regulation, Oversight and Monitoring of Private Military and Security Companies, which emphasizes state responsibility to regulate and monitor, rather than ban and criminalize, PMSCs' activities. (50) In 2010, the UN Human Rights Council established another open-ended intergovernmental working group with the mandate to consider the possibility of elaborating an international regulatory framework on PMSCs. Albeit such a framework has yet to come to fruition and the 2009 Draft Convention has had few practical or political implications thus far, but the recent UN emphasis on regulation and control of PMSCs' activities is both clear and unprecedented.
5 Condemnations versus Opacity
Although numerous reports have been produced by the two UN special rapporteurs (condemning the activities of PMSCs in general) and the UN Working Group on the Use of Mercenaries (criticizing the PMSCs in general and recently also their use by the UN in particular), few other parts of the UN system have officially stated their opinions regarding the UN's use of PMSCs. Two notable exceptions include the 2002 report of the Secretary-General on UN outsourcing practices, which stated that contracting out security services "may compromise the safety and security of delegations staff and visitors" and noted that PMSCs' services "will be phased out in due course" and replaced with UN staff members. (51) For its part, the Office for the Coordination of Humanitarian Affairs (OCHA) has raised its own concerns about PMSCs' role in war-torn areas in its 2004 guidelines on humanitarian-military interaction in Iraq, noting that they were "increasingly becoming a target" and raised "problems of operational control, accountability and liability." (52)
There also is only limited evidence of open condemnation or opposition to the UN's use of PMSCs' services in interviews and statements of top UN officials. Former UN Secretary-General Kofi Annan, who also had been the under-secretary-general for peacekeeping operations in the 1990s, preferred "to improve the organization's recruitment of national troop contingents and to strengthen UN operational control over its missions." (53) Jean-Marie Guehenno, another former under-secretary-general for peacekeeping operations, "was likewise cool towards PMSCs." (54) In her 2007 book, Percy cited only three interviews with senior UN officials to support her claim that "the depth of international dislike for mercenaries would prevent the UN from ever using private force in a peacekeeping capacity, no matter how useful they might be." (55)
It is also important to note that except for the 2014 report by the UN Working Group on the Use of Mercenaries, all other aforementioned UN reports and statements of UN top officials date back to the first decade of the twenty-first century. Moreover, their limited numbers point to the prodigious opacity that surrounds the UN's use of PMSCs. In spite of repeated requests for greater transparency from within the UN system (56) and from external experts, (57) only two UN reports have thus far provided specific data regarding the UN's use of PMSCs, and the accuracy of some of this data is open to debate (see above). There are several technical explanations for this persisting lack of information, including client confidentiality clauses in PMSCs' contracts; poor record keeping and reporting across the UN system as a whole, as well as within the Secretariat and individual parts of the UN system. (58) Jointly, these explanations could also imply that the UN has been remarkably shy about discussing its use of PMSCs simply because the UN system is too unwieldy and disorganized to produce a coherent policy. However, UN staff have also often lacked the authorization to participate in or provide information to studies of the UN's use of PMSCs, (59) which suggests that the persisting opacity that surrounds its use of PMSCs' services may be "a deliberate strategy of the UN's leadership to avoid open discussion and keep its policymaking process almost completely in the dark, reflecting the sensitive and potentially embarrassing nature of the companies and their work." (60) This strategy appears to have worked reasonably well vis-a-vis the UN Member States, who for the first time openly debated the organization's use of PMSCs only after the publication of the first two UN reports on its use of PMSCs in late 2012 (see above). (61) However, this proves only that opacity runs contrary to the UN's official primary strategy to address the intricacies of its use of PMSCs' services--without transparency, no amount of UN guidelines and regulations can ensure democratic oversight and public scrutiny.
6 No Longer Puritanical and Changing, but Still Influential?
The findings of our analysis of the UN's use of PMSCs' services suggest that the puritanical turn in the history of the anti-mercenary norm is over. Albeit the official UN data is still relatively scarce and incomplete, there is irrefutable evidence of regular, widespread, and often long-term contracting of PMSCs within the UN system and its field missions. The UN's use of armed PMSCs' services was officially justified by the Secretary-General in May 2011 as a last resort measure that allows the UN to operate in increasingly complex and hostile (post)conflict areas where no other alternatives are available to protect UN personnel and premises. Since late 2012, the UN also has had an official policy and specific guidelines for security outsourcing. All of this indicates that the use of PMSCs' services, both unarmed and armed, is nowadays presumed to be acceptable within the entire UN system.
A second important indicator of the waning proscriptive impact of the anti-mercenary norm is the relative absence of condemnations of security outsourcing in official UN reports and statements by UN officials. The few critical exceptions all date back to the first decade of the twenty-first century, and they have had little practical impact as there is no empirical evidence of the UN taking back security functions from PMSCs. In fact, the opposite has happened and all parts of the UN system and UN field missions, including peacekeeping operations, have progressively expanded their use of PMSCs' services in the 2010s (see Figures 1 and 2). As a consequence, even the Working Group on the Use of Mercenaries nowadays primarily focuses on the analysis of guidelines and regulations of PMSCs. Similarly, in stark contrast to the 1989 UN International Convention against the Recruitment, Use, Financing and Training of Mercenaries, the 2009 UN Draft International Convention on the Regulation, Oversight and Monitoring of Private Military and Security Companies emphasizes state responsibility to regulate, rather than ban, PMSCs' activities.
The abrupt shift of the UN's position on the use of PMSCs in 2011 therefore can also be interpreted as a belated recognition of the costs of its long-standing anti-mercenary norm entrepreneurship. (62) The UN played a prominent role in the institutionalization of the anti-mercenary norm in the second half of the twentieth century and both the special rapporteur and, at least initially, the Working Group on the Use of Mercenaries were extremely critical of PMSCs even as their services were used by an ever increasing number of customers, including states as well as other international and nongovernmental organizations. As a consequence, the bulk of the recent regulatory action has happened outside of the UN (i.e., the 2008 Montreux and 2010 ICoC processes). Moreover, the UN's refusal to officially acknowledge its use of PMSCs' services up until 2011 also clearly impeded the development of its own coherent internal policy for at least two decades.
A closer analysis of the key UN documents, however, also reveals some lingering influence of both key aspects of the anti-mercenary norm within the UN system. When it comes to the lack of control, all recent UN documents have emphasized the need for regulation of PM SCs' contracting to ensure their accountability. Perhaps most importantly, albeit that the 2012 UN Policy and Guidelines have both been criticized on several grounds, (63) they introduced the first set of standardized rules for the use of armed PMSCs' services within the entire UN system. In particular, the guidelines established a clear chain of accountability (the use of armed private security must be approved by the under-secretary-general for safety and security); increased systemwide transparency (all UN agencies, funds, and programs must be notified when any UN entity hires armed security services); and attempted to prevent the hiring of PMSCs with dubious records (their operating procedures must be consistent with the International Code of Conduct for Private Security Service Providers) and problematic employees (companies must conduct screening and training of all employees to meet specified UN standards) that could tarnish the UN's own reputation. Moreover, both the UN Policy and Guidelines envisaged relatively tight oversight of PMSCs' activities on the ground with daily onsite inspections and monthly review of performance by UN staff.
When it comes to the lack of a proper cause, the UN's attempt to justify the need to contract PMSCs as a last resort suggests that the practice is still perceived as controversial. This is because similar to "a decision by a government to employ outside military assistance is an admission of its own forces' failure [which] is likely to cause severe loss of face for its military personnel," (64) the UN's need to use PMSCs' services to carry out some of its core functions reveals its fundamental weakness. The UN, therefore, wants to at least signal that its decision to use PMSCs should not be taken as its endorsement, but as an act of desperation--had other options been available, UN officials would have pursued them. (65)
In this context, however, it is important to note the dual nature of the UN as an international organization. Although this article concerns primarily the direct use of PMSCs' services by the UN system, over which UN officials exercise considerable control, PMSCs also frequently get involved in UN field operations via indirect contracting through UN Member State contingencies. This includes Western countries unable or unwilling to supply sworn public personnel to UN missions (66) and developing countries motivated to take part in peacekeeping operations by the UN reimbursement system. (67) Some UN Member States have also exercised their host government responsibility to protect the UN staff and local premises by hiring PMSCs' personnel instead of using their public security agencies. (68) Besides, several Western countries have outsourced to PMSCs their training and security sector reform assistance programs aimed at increasing the numbers of capable troops and police units that could also be deployed in UN operations. The contracted PMSCs, therefore, have a "considerable influence on the evolution of peacekeeping, as they help define concepts, standards and criteria for peacekeepers." (69)
Moreover, there is also some evidence that Member States that have themselves resorted to large-scale security outsourcing have openly encouraged the UN to follow their example. In its report accompanying the appropriations bill regarding US contributions to UN peacekeeping activities in 2005, the Senate Committee on Appropriations, for example, stated the following:
In some cases, private companies can carry out effective peacekeeping missions for a fraction of the funding the United Nations requires to carry out the same missions. At a minimum, such companies should be utilized to supplement the number of blue berets and blue helmets which, in these turbulent times, the United Nations is having a difficult time recruiting. The United Nations can no longer afford to ignore the potential cost-savings that private companies with proven records of good service and good behavior offer. (70)
Furthermore, prior professional experiences of UN officials at the national level also matter. For example, from May 2009 until January 2013, the post of under-secretary-general for safety and security, who has to approve all requests for security contracting, was filled by Gregory B. Starr. He has been known to embrace the deployment of PMSCs in his past posts as director of the Diplomatic Security Service and principal deputy assistant secretary of the Bureau of Diplomatic Security in the US Department of State. (71)
The discussion above therefore not only highlights the significant role of UN Member States when it comes to understanding the shift in the UN's institutional position on the use of PM SCs in 2011, but it also hints at a norm change at the state level. This finding is in line with several recent studies, which suggest that the anti-mercenary norm has evolved so that, since the 1990s, "private force is acceptable when used by legitimate states' and when used defensively." (72)
As we have shown above, it is clear that the widespread use of PMSCs' services raises more than just technical and legal dilemmas for all parts of the UN system. The very need to justify this practice suggests that it poses a number of profound challenges to the UN's internal and external legitimacy. Perhaps most importantly, the official and widespread use of PMSCs' services by the UN may undermine its ontological security--that is, the UN's view of itself as the beacon of international peace and security. As such, the publication of the UN Policy and Guidelines can be interpreted as an attempt to minimize the reputational risk to the UN caused by its officially sanctioned use of PMSCs' services. Correspondingly, the persisting and, apparently deliberate, opacity surrounding the UN's use of PMSCs can be interpreted as an attempt by the Secretariat to minimize the associated ontological dissonance caused by the unresolved clash of this practice with the UN's long-established identity as a key anti-mercenary norm entrepreneur. Alternatively, however, the abrupt shift of the UN's position on the use of PMSCs in 2011 can also be interpreted as recognition that a priori normative hostility toward PMSCs pushed them to work outside the UN processes for regulation. As a consequence, the UN has failed to provide effective governance and it is struggling to come back to relevance on this important issue. In either case, the UN's officially sanctioned use of PMSCs reflects a major departure from the orthodox historical understanding of the anti-mercenary norm, which the organization actively promoted for decades. Future proponents of the anti-mercenary norm will therefore find it much more difficult to argue against the deployment of force by private sector actors.
Similar to many of its Member States that have even longer and more extensive records of security outsourcing, the UN should have first tackled the difficult question of whether some of its activities are too important to be (co)performed by PMSCs. The hitherto national-level experiences (73) also suggest that even if they were not in contradiction, neither of the two current strategies of the UN Secretariat--official guidelines and regulation, and unofficial, yet persisting, opacity--can sufficiently address all of the dilemmas of UN security outsourcing. Thus, in addition to being frank about the realities of the UN's use of PMSCs' services, UN as well as national-level policymakers should primarily focus on identifying those remedies that would ultimately eliminate the current need to make the hard choices between PMSCs and nonaction.
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Krahmann, Elke. "From 'Mercenaries' to 'Private Security Contractors': The (Reconstruction of Armed Security Providers in International Legal Discourses." Millennium 40 (2) (2011), 343-363.
Krahmann, Elke. "The United States, PMSCs and the State Monopoly on Violence: Leading the Way towards Norm Change." Security Dialogue 11 (1) (2013), 53-71.
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[empty set]stensen, [Angstrom]se Gilje. "In the Business of Peace: The Political Influence of Private Military and Security Companies on UN Peacekeeping." International Peacekeeping 20 (1) (2013), 33-47.
[empty set]stensen, [Angstrom]se Gilje. "Implementers or Governors? The Expanding Role for Private Military and Security Companies within the Peace Operations Network." International Community Law Review 16 (4) (2014), 423-442.
Patterson, Malcolm. "A Corporate Alternative to United Nations Ad Hoc Military Deployments." Journal of Conflict and Security Law 13 (2) (2008), 215-232.
Patterson, Malcolm. Privatising Peace--A Corporate Adjunct to United Nations Peacekeeping and Humanitarian Operations (London: Palgrave Macmillan, 2009).
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Percy, Sarah. "The Unimplemented Norm." In Implementation and World Politics, eds. Alexander Betts and Phil Orchard (Oxford: Oxford University Press, 2014), 68-84.
Petersohn, Ulrich. "Refraining the Anti-Mercenary Norm: Private Military and Security Companies and Mercenarism." International Journal: Canada's Journal of Global Policy Analysis 69 (4) (2014), 475-493.
Pingeot, Lou. "Dangerous Partnership--Private Military & Security Companies and the UN" (Berlin: Rosa Luxemburg Foundation, 2012). http://www.rosalux.de/publication/38598/dangerous-partnership.html.
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Center for Security Studies, Metropolitan University Prague firstname.lastname@example.org
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(1) The authors gratefully acknowledge financial support from the Czech Science Foundation under the standard research grant no. GA16-02288S.
(2) UN General Assembly 1976, 31/34 [section].
(3) UN Security Council 1967; UN Security Council 1977.
(4) Ballesteros 1998, para. 68.
(5) Percy 2007, 222; see also Bures 2005.
(6) UN Secretary-General 2012, para. 8.
(7) UN Department of Safety and Security 2012a.
(8) UN Department of Safety and Security 2012b.
(9) UN Working Group on the Use of Mercenaries 2013, para. 17.
(10) Percy 2007, 36-37.
(11) Percy 2007, 1.
(12) Percy 2007, 218-219.
(13) Percy 2007, 18-19.
(14) Percy 2007, 32.
(15) Fitzsimmons 2009; Krahmann 2013; Petersohn 2014.
(16) Percy argues that private companies not offering offensive combat services can point to a greater cause because they fight for the goals of their home state, contract "primarily" or "exclusively" with their home state, or work only on projects approved by their home state. Percy 2007, 235. For a rebuttal, see Petersohn 2014, 480-482.
(17) Percy 2007, 237.
(18) Percy 2007, 232; Percy 2014, 80.
(19) For a recent literature review, see Sorensen 2015, 405.
(20) [empty set]stensen 2011, 7.
(21) See International Committee of the Red Cross 2011.
(22) Advisory Committee on Administrative and Budgetary Questions 2012; UN Secretary-General 2012; UN Working Group on the Use of Mercenaries 2014.
(23) Pingeot 2014; [empty set]stensen 2011; Patterson 2008; [empty set]stensen 2013; Pingeot 2012.
(24) Boot and Kirkpatrick 2006; Fitzsimmons 2005; Patterson 2009; Rochester 2007.
(25) Advisory Committee on Administrative and Budgetary Questions 2012.
(26) Presumably, UN officials from the Department of Peacekeeping Operations, Department of Political Affairs, or Department of Safety and Security.
(27) Advisory Committee on Administrative and Budgetary Questions 2012, para. 23.
(28) Moreover, another private military and security company (PMSC) listed in the annexes, Ronco Consulting, had been acquired by G4S before the publication of the report. See G4S 2008.
(29) [empty set]stcnsen 2011, 55.
(30) See UN Procurement Division 2018.
(31) Pingeot 2012,32.
(32) [empty set]stensen 2011, 58.
(33) UN Working Group on the Use of Mercenaries 2014, para. 11.
(34) Advisory Committee on Administrative and Budgetary Questions 2012, Annex I, 12.
(35) Pingeot 2012, 47.
(36) The terminology used in the Annual Statistical Reports on UN Procurement has changed several times since 2009. The latest available report for 2016 referred to "Public Order and Security and Safety Services" and "Law Enforcement and Security and Safety Equipment and Supplies." The terminology used by the UN Procurement Division has been more consistent--prior to 2016, when a generic "Security" category was introduced, the relevant category was consistently called "Security & Safety Equipment & Services."
(37) These include the availability, professionalism, and deployment readiness of PMSCs' personnel; better organization and equipment; and lower costs. For a detailed discussion, see Bures 2005; Patterson 2008; Spearin 2011.
(38) UN Working Group on the Use of Mercenaries 2014, para. 8.
(39) Interview with the UN under-secretary-general for safety and security, Kevin Kennedy, cited in Pingeot 2014, 12.
(40) UN Working Group on the Use of Mercenaries 2014, paras. 8, 20.
(41) UN Working Group on the Use of Mercenaries, paras. 16, 20.
(42) UN Secretary-General 2012, para. 8.
(43) [empty set]stensen 2011, 5.
(44) Pingeot 2014,10.
(45) UN Department of Safety and Security 2012b, para. 3.
(46) See International Code of Conduct Association 2018.
(47) UN Department of Safety and Security 2012a.
(48) UN High Commissioner for Human Rights 2016.
(49) The working group reports are available at http://ap.ohchr.org/documents/dpage_e.aspx?m=152. The special rapporteur reports are available at http://ap.ohchr.org/documents/dpage_e.aspx?m=105.
(50) For an analysis of the Draft Conventions' provisions, as well as their shortcomings, see [empty set]stensen 2011.
(51) UN General Assembly 2002, para. 4.
(52) UN Office for the Coordination of Humanitarian Affairs 2004, 5.
(53) Cited in Pingeot 2012, 23.
(54) Cited in Pingeot 2012, 23.
(55) Percy 2007, 224.
(56) UN Working Group on the Use of Mercenaries 2014, para. 85.
(57) [empty set]stensen 2011; Pingeot 2014.
(58) [empty set]stensen 2011, 8-9.
(59) [empty set]stensen 2011, 9.
(60) Pingeot 2012, 9.
(61) These debates revealed stark differences of opinion among UN Member States, largely reflecting their own national policies regarding PMSCs. Interviews are cited in Pingeot 2014, 10.
(62) We are grateful to an anonymous reviewer for raising this point to our attention.
(63) For paying no attention to security services other than armed guards; excessively relying on self-reporting from hired PMSCs when it comes to their employees' screening and training; showing limited concern for the impact of PMSCs on the UN's security posture, UN mandates, and image of the organization; and failing to address access to justice issues for victims of misconduct by PMSCs and human rights violations of their employees. See The Use of Private Military and Security Companies by the United Nations: International Legal Aspects 2014.
(64) Shearer 1997, 205.
(65) For a rebuttal, see Pingeot 2012.
(66) In the United States, for example, the federal police force cannot be seconded directly to international missions, so the State Department relies entirely on recruiting police personnel from PMSCs.
(67) Coleman 2014.
(68) [empty set]stensen 2011, 13.
(69) [empty set]stensen 2014, 437.
(70) US Senate 2004.
(71) [empty set]stensen 2011, 42.
(72) Percy 2014, 74; see also Petersohn 2014; Krahmann 2011.
(73) See Dunigan and Petersohn 2015.
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|Date:||Jan 1, 2019|
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