New Legal Horizons: Establishing a Regulatory Framework for the Conducts of PMSCs employed by the UN

This executive summary attempts to demonstrate the extent to which current scholarly work as well as practical regulations are suffering from a legal and theoretical vacuum to reflect upon the immunity of PMSCs in UN peacekeeping and peace enforcement operations. Considering that their use is rising, and the law is not catching this train, it is important to discuss the issue not only from a scholarly point of view with established laws but to also assess the practices. This indeed will be the objective of this thesis. This thesis will aim to offer an empirical analysis by creating its own database to assess the matter of PMSCs’ legal status involved in peacekeeping and peace enforcement missions. This will take place through utilizing the SPSS software where it will first be identified which UN operations benefited from PMSCs utilization. Secondly, the mandates of each operation will be determined. The question of whether the operation was peace enforcement or peacekeeping is the next step in this process. Lastly, it will be assessed whether the services offered by PMSCs fall within military or security services. Through this, the thesis will then establish whether under IHL it is legal to use PMSCs. The legal immunity granted to PMSCs to serve other tasks of the UN will also be reflected in this thesis. The thesis will consist of 7 chapters uncovering different dimensions of utilizing PMSCs in the UN system. These are the following: assessing legal personality of the PMSCs under the UN Charter, under the IHL, in practice, when used in cooperation with regional organizations, and the legal division between peacekeeping and peace enforcement.

Furthermore, the legality of using PMSCs by the UN will be discussed extensively in this thesis. Whether organs of the UN can also employ and benefit from the utilization of PMSCs. Therefore, assessment of intra vires and ultra vires of UN as an organization and its organs will be scrutinized separately. For this purpose, documents such as Expenses Case by the ICJ and the Legality of Using Nuclear Weapons by States will be used. This argument will be assessed based on each organ that employs or benefits from PMSCs services and the nature of the services offered by these companies.

Most importantly, what needs to be acknowledged is that this thesis will only look at IHL when PMSCs are used in peacekeeping and peace enforcement operations during an armed conflict. However, in situations where IHL is irrelevant, this paper will take other instruments of law as means of assessment. Particularly when PMSCs are employed by the UN organs on areas that does not require PMSCs to take part in hostilities (whether directly or indirectly). The main focus of this paper is on armed conflict and IHL because as suggested by the literature review, most of their services are offered in the armed conflict circumstances. Thus, capturing corners of corporate responsibility of these companies and how is that reflected in armed conflict under the UN immunity.

This thesis therefore will reflect upon jus in bello as well as how the UN and its employees must respect Jus-in-Bello when involved in the armed conflict but also which regulations needed to occur before entering the armed conflict, therefore Jus-ad-Bellum. It is not only about the theories and established laws of international law but also the practices and future grounds for new laws and regulations.

The establishment of the UN in 1945 changed the landscape of international law. Maintain the main objective of the UN – “ensuring the peace and security” – could not be retained at no cost. The dominant powers that could wield influence were also unwilling and unable to supply the UN with sufficient resources to reach its objective. Consequently, this lack of resources led to the UN being unable to adequately respond to the circumstances “that required its presence” (Kovač, 2009, p. 309). The UN's immediate response was mostly imperative as “a mediator, confidence-builder, security guarantor or even as a state or nation builder” (Ibid).

The end of the Cold War brought various changes in the world of international law and international relations. The inevitable expansion of “the UN peacekeeping operations”, despite a significant decline in states’ standing armies, was one of these changes. This shift led to “the UN General Assembly and Secretariat to inspect alternative approaches “in staffing these peacekeeping operations” (Cameron, 2017, p. 13). Consequently, it then followed that the report of the Secretary-General on 18 September 1990 to be invested in the “Use of Civilian Personnel in Peace-Keeping Operations” (UN Doc A/45/502) (Ibid). Since 1989, the UN started to substantially rely on civilian police in its peacekeeping operations (Hansen, 2002).

According to Østensen (2011), PMSCs have been operating to fulfil UN operations and missions since the 1990s. These companies continue to offer services which entail consequences for some of the fundamental activities and UN functions for the purpose of complementing tasks that are often executed by UN organizations in its “humanitarian, peacekeeping operations, political missions or even as part of regular country office work” (ibid). Lastly, in her article, Østensen (2011) addresses whether the practices of the PMSCs obey any possible established guidelines ruling and supervising their conducts. The article also assesses the conditions under which the PMSCs were used as “ad hoc band-aids” under intense working environments (Ibid). Since no efficient and accepted guideline exists, this paper will seek to suggest a potential framework for governing this relationship with a basis in international legal instruments and customary international law.

Furthermore, most of the time the tasks allocated to these actors are tasks that the UN itself may not carry out due to either a lack of capacity or means to execute them (ibid). Additionally, it is not obligatory for the UN entities to purchase the PMSCs services directly; any third parties or member states can second it to them (ibid). Therefore, the responsibility of international organizations (namely UN) for the acts of the private contractors will be analyzed in this thesis.

This thesis will therefore aim to establish a regulatory framework under which the conducts of PMSCs can be monitored once employed by the UN. It will do so by considering different types of immunities granted to PMSCs by the UN in various types of peacekeeping and peace enforcement operations, where they are seconded to the UN by states or UN has directly employed them. What grants immunity to these actors and on what legal basis and constitutional ground? Or is this immunity given to them according to another instrument of law? What effect does this have on PMSCs’ immunity once they are operating in cooperation missions between the UN and NATO? It therefore considers all dimensions in which these companies are employed by the UN and how the UN utilizes them.

As reported in the Howard (2015) article, peacekeeping missions have been successful when the objective of the mission was to prevent states from returning to a state of war (p. 6). However, the missions have failed in “a few instances when implementing their mandates” were not fulfilled (Ibid). Howard (2015) uses the examples of Somalia, Rwanda, Srebrenica, and Bosnia-Herzegovina to show the failure in implementing these mandates. This failure has given the power for peacekeeping missions to implement a “more robust peace enforcement mandates to protect civilians” (ibid). Such a development ought to guarantee a more peaceful result through ensuring that force can be used when necessary.

However, modern peacekeeping suggests that there is often no peace to be kept. Thus, peace needs to be enforced first. As Article 42 of the UN Charter gives autonomy for using force, UNSC often mandates peacekeepers protect United Nations personnel and equipment, ensure the safety and freedom of movement of its personnel and, without prejudice to the efforts of the host States, to protect civilians under imminent threat of physical violence, within its capabilities, it legitimizes killing of armed civilians if under attack. However, the grey area of law suggests that in accordance with Article 105 of the UN Charter, the UN as an organization enjoys immunity on the territory of each of the Member States. Hence, a legal proceeding cannot be brought against the UN as an organization if something goes wrong during a peacekeeping mission on such territory. To make that meaningful, they have also given immunity to the individual people who work for the UN. Meaning that there is a functional immunity; everyone working for the UN enjoys immunity. The Convention on Immunities of the UN develops to confirm that the UN enjoys immunity in every form of legal process and Article 29(b) states that, considering this immunity, “the United Nations is obligated to make provisions for appropriate modes of settlements for disputes involving their officials, who, owing to this immunity, cannot be held legally accountable”. This however is a topic for controversy as this immunity has been granted to PMSCs due to them holding a civilian status under IHL. In other words, PMSCs owe their immunity not to Article 105 of the UN Charter but to IHL which grants them immunity due to their status as civilians. This is another working argument of this paper which will be evaluated under the analysis section.

Cameron (2017) in her book briefly covers the implications of the PMSCs’ status once employed by the UN to be “military contingent in peace operations” (p. 7). Various discourse over this grey legal status of PMSCs emphasizes the military component of peacekeeping. Accordingly, different schemes suggest that the legal status of PMSCs should be observed as “military force in peace operations” (ibid).

The legal distinction between peacekeeping and peace enforcement operations which are addressed by Janaby in his two separate articles are significant developments in addressing the legal implications of use of PMSCS by the UN. Janaby’s (2015) main argument is that international law legitimizes the “process of peacekeeping operations through PMSCs to be legal. However, this argument cannot be held true for peace enforcement operations'' (Janaby, 2015, p. 147). This distinction then inspires this thesis to divide the conceptualizing of “peacekeeping operations” and “peace enforcement”. Another piece of literature by Janaby (2015), namely: “The Legal Status of Employees of Private Military/ Security Companies Participating in U.N. Peacekeeping Operations” will also be used to clarify this distinction. The division is relevant to establishing an effective methodology that will help the paper to provide normative arguments on the legality of employing PMSCs in two different operations – peacekeeping and peace enforcement –. Therefore, different magnifier glasses are needed to assess this thesis which will become feasible through a coherent conceptualization of these two terms and explaining different theories regarding the legal analysis of the use of PMSCs in these two operations by the UN. Moreover, the Montreux document will assist the primary arguments of Janaby to take a legal shape and expand it from a theoretical discourse to a more practical one. This thesis will also cover this legal distinction and illustrates how does this legal dichotomy impact potential regulatory frameworks.

From this point, the main argument of this thesis suggests that a regulatory framework can be derived from the legal distinction between peace enforcement (operations mainly requiring military services from PMSCs) and peacekeeping operations (requiring PMSCs to offer security tasks). Therefore, if the military v. security tasks are distinguished, through considering the mandates of each operation, it can be evaluated whether direct participation in hostility is required or not. In the case where this direct participation was essential for the mandates to be fulfilled, and the military tasks were served by these companies, they lose their immunity due to losing their civilian status under the IHL. The process and legal implications of granting immunity to this specific type of personnel, PMSCs, will also be assessed in this thesis.

This thesis will aim to assess the legality of using PMSCs in accordance with the principle of Direct Participation in Hostilities under international humanitarian law. To further this argument, the legal analysis of this thesis reiterates the suggestion of Ralby (2015) to draw a distinction between when these companies provide military or hostilities related services, conducts and activities in contrast to when they are providing security related activities to their employers. This therefore requires the conceptualization of this thesis to provide specific distinctions and definitions of the following concepts:

1. Peacekeeping Vs. Peace enforcement

2. Combatants Vs. civilians (according to principle of direct participation in hostilities under IHL)

3. Military services vs. security services