A corporate alternative to United Nations ad hoc Military deployments

Journal of Conflict and Security Law

Volumn 13, Issue 2, 2008, Pages 215-232

  Patterson, Malcolm ^a  

^a UNIVERSITY OF NEW SOUTH WALES   (Australia)

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[No Author keywords available]

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EID: 58149395055     PISSN: 14677954     EISSN: 14677962     Source Type: Journal    
DOI: 10.1093/jcsl/krn018     Document Type: Article

References (112)

1. Or at best, a mediocre record. For this view see D. Bratt, 'Assessing the Success of UN Peacekeeping Operations,' in M. Pugh (ed.), International Peacekeeping Vol. 3, No. 4 (1996) 64 notes 1 & 4; and generally, 71-79.
2. For harsher conclusions cf. P. F. Diehl, International Peacekeeping (1993) 34, 37; 60-61; 167-169; 175-177
3. Also M. A. Browne, United Nations Peacekeeping: Historical Overview and Current Issues CRS Report for Congress, Library of Congress (Washington DC 31 January 1990). Ms Browne concluded that if one assessed operations according to whether or not they resolved the underlying dispute that generated conflict, only two of the seven deployments studied were successful.
4. For a book length analysis see D. C. Jett, Why Peacekeeping Fails (1999).
5. A more polemical account is to be found in F.H. Fleitz Jr, Peacekeeping Fiascoes of the 1990s (2002).
6. See S. Chesterman, You, The People: The United Nations, Transitional Administration and State Building (2004) and Chapter 4 in particular.
7. M. J. Glennon, 'Why the Security Council Failed,' (May-June 2003) 82(3) Foreign Affairs 16.
8. Report on the Question of the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self-Determination UN doc. A/60/263 (17 August 2005) at para. 53 and see generally Part VIII.
9. The case for international humanitarian intervention has been argued lucidly if at a legal periphery for some time. E.g. D. J. Scheffer, 'Towards a Modern Doctrine of Humanitarian Intervention,' (1992) 23(2) University of Toledo Law Review;
10. N. Wheeler, 'Legitimating Humanitarian Intervention: Principles and Procedures,' (2001) 2(2) Melbourne Journal of International Law.
11. Weaknesses in the first alternative are adroitly explained in H. J. Morgenthau, 'The Political Conditions for an International Police Force,' (1963) 17(2) International Organization - 'International Force: A Symposium' (1963).
12. On problems likely to arise with standby forces and a permanent UN military see A. Morrison, 'The Fiction of a Standing UN Army,' (1994) 18(83) Fletcher Forum on World Affairs.
13. UNAMIR was the 'United Nations Assistance Mission for Rwanda', October 1993-March 1996.
14. 'UNSAS' arrangements have been in use since 1993. A concise description may be found at T. Pippard & V. Lie, Enhancing the Rapid Reaction Capability of the United Nations: Exploring the Options, UN Association of Great Britain and Northern Ireland viewed on 27 April 2005 at 2-3.
15. See B. Boutros-Ghali, Supplement to An Agenda for Peace: Position Paper of the Secretary-General on the Occasion of the Fiftieth Anniversary of the United Nations doc. A/50/60-S/1995/1 viewed on PDF file on 26 April 2005 at at para. 43.
16. K. A. Annan, 'Challenges of the New Peacekeeping,' in O. A. Otunnu & M. W. Doyle (eds), Peacemaking and Peacekeeping for the New Century (1998) 174.
17. Several experts claim that a reinforced brigade would have been sufficient to quell much of Rwanda's 1994 genocidal turbulence. See S.R. Fell, Preventing Genocide. How the Use of Force Might Have Succeeded in Rwanda Carnegie Commission on Preventing Deadly Conflict (1998) 4; 10-11.
18. UNAMIR Commander Maj-Gen Dallaire suggested that 5000 soldiers could have prevented the massacres in the south and west of Rwanda. Cited in A. Roberts, 'Proposals for UN Standing Forces: History, Tasks and Obstacles,' at 38 note 37 in D. A. Leurdijk (ed.), A UN Rapid Deployment Brigade: Strengthening the Capacity for a Quick Response (1995).
19. Also Dallaire quoted in Fell, Preventing ... at 2.
20. Leurdijk, op. cit., fn. 10, p. 12 & note 10.
21. The initialism 'PMSCs' refers to 'private military and security contractors.'
22. Arguments one might gather under this rubric include a defence of idealised state prerogatives; problems created in state military organisations where PMSCs play an expanding role; distortion of state security agendas through commercial influence; discriminatory supply of security based on capacity to pay; hostility from vocal UN organs; and legal circumspection as to the adequacy of measures taken to address state responsibility. See H. Wulf, Internationalizing and Privatizing War and Peace (2005)
23. A-F. Musah & J. K. Fayemi, Mercenaries: An African Security Dilemma (2000)
24. E. Ballesteros, Report on the Question of the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self-Determination doc. E/CN.4/1997/24 (20 February 1997) viewed on 16 March 2006 at
25. A. Bharadwaj, 'Privatization of Security: The Mercenary - Market Mix,' (2003) 3(2) Defence Studies
26. E. Krahmann, 'Conceptualizing Security Governance,' (2003) 38(1) Cooperation and Conflict;
27. A. Leander, 'The Power to Construct International Security: On the Significance of Private Military Companies,' 33(3) Millennium;
28. C. Lehnardt, 'Private Military Companies and State Responsibility,' in S. Chesterman & C. Lehnardt (eds), From Mercenaries to Market (2007)
29. and C. Holmqvist, Private Security Companies: The Case for Regulation SIPRI Policy Paper No. 9 (January 2005).
30. R. Mandel, 'The Privatization of Security,' (2001) 28(1) Armed Forces and Society 129-130.
31. See L.W. Serewicz, 'Globalisation, Sovereignty and the Military Revolution: From Mercenaries to Private International Security Companies,' (2002) 39 International Politics 75-89.
32. For an exploration of some agency concepts - although not in an UN context - see J. Cockayne, 'Make or Buy? Principal-Agent Theory and the Regulation of Private Military Companies', in S. Chesterman & C. Lehnardt (eds.), From Mercenaries to ....
33. P. W. Singer, Corporate Warriors: The Rise of the Privatized Military Industry (2003) 18.
34. MONUC is the 'United Nations Organization Mission in the Democratic Republic of Congo,' November 1999 -.
35. United Nations Procurement Service, United Nations Mission in the Democratic Republic of Congo viewed on 6 September 2006 at .
36. Singer, op. cit., fn. 17, p. 82.
37. C. Lynch, 'Private Firms Aid UN on Sanctions,' Washington Post, 21 April 2001, viewed on 5 June 2006 at .
38. The UNSC established the UN International Police Task Force (IPTF) to carry out a programme of assistance in Bosnia and Herzegovina as a United Nations Civilian Police (UNCIVPOL) operation. DynCorp was the US firm concerned. See US Dept. of State, Dayton Peace Agreement Documents viewed on 13 September 2006 at .
39. T. Vaux, 'European Aid Agencies and Their Use of Private Security Companies,' in T. Vaux, C. Seiple, G. Nakano & K. Van Brabant, Humanitarian Action and Private Security Companies: Opening the Debate (2002) at 14-16
40. K. Brabant, Humanitarian Action and Private Security Companies, Humanitarian Practice Network viewed on 20 March 2006 at http://www.odihpn.org/report.asp?ID.
41. For a discussion of the issues involved see T. Vaux, C. Seiple, G. Nakano and K. Van Brabant, 'Humanitarian Action and Private Security Companies,' International Alert PDF viewed on 12 April 2005 at .
42. For a concise explanation of US government difficulties over contracting in Iraq with Halliburton and KBR in particular; an explanation of contracting authority and eligibility; the contracting agencies involved; programmes, procurement and Congressional oversight, see V. B. Grasso, Iraq: Frequently Asked Questions About Contracting CRS/ Report for Congress (Updated 18 March 2005).
43. For a journalist's view of more general US administrative deficiencies in Iraq, see E. Harriman, 'So, Mr. Bremer, Where Did All the Money Go?,' The Guardian (7 July 2005) viewed on 17 July 2005 at
44. and more recently J. Glanz, 'Iraq Spending Ignored Rules, Pentagon Says,' New York Times (23 May 2008) viewed on 23 May 2008 at .
45. GAO, Military Operations: High Level DOD Action Needed to Address Long-Standing Problems with Management and Oversight of Contractors Supporting Deployed Forces. Report to Congressional Committees No. GAO-07-145 (December 2006)
46. See 'Highlights' and 'Results in Brief' at pp. 3-6.
47. The company has since been re-branded 'Blackwater Worldwide.'
48. J. Karadsheh, 'Survivors of Blackwater Shooting in Iraq Tell FBI their Stories,' CNN.com/World (13 October 2007) viewed on 7 May 2008 at .
49. J. Finer, 'State Dept Contractors Kill 2 Civilians in N. Iraq,' Washington Post (9 February 2006) viewed on 9 February 2006 at
50. T. Jackman, 'US Contractor Fired on Iraqi Vehicles for Sport, Suit Alleges,' Washington Post (17 November 2006) at viewed 17 November 2006 at
51. Amnesty International USA, Annual Report (23 May 2006) viewed on 24 November 2006 at .
52. D. Isenberg, A Government in Search of Cover: PMCs in Iraq, British-American Security Information Council (March 2006) 12. Whistleblowers who aired allegations of an apparently gratuitous murder were promptly dismissed by their employer, Triple Canopy.
53. Also L. Myers, 'Did Americans Fire on Iraqis for Sport?,' MSNBC.com (21December 2006) viewed on 22 December 2006 at .
54. J. Finer, 'Security Contractors in Iraq under Scrutiny after Shootings,' Washington Post Foreign Service (10 Sept 2005) viewed on 21 December 2005 at .
55. GAO, Rebuilding Iraq: Actions Needed to Improve Use of Private Security Providers, Report to Congressional Committees GAO-05-737 (July 2005) and preface.
56. For example, international humanitarian obligations are carried by PMSCs and their employees; states which hire both, states in which these companies are incorporated and states in which these companies conduct business. See E.-C. Gillard, 'Private Military/Security Companies: The Status of their Staff and their Obligations under International Humanitarian Law and the Responsibilities of States in Relation to their Operations,' Swiss Initiative on PMCs/PSCs, Kusnacht Workshop, Swiss Dept of Foreign Affairs (16 January 2006).
57. HumanRights First, Private Security Contractors at War. Ending the Culture of Impunity (2008). Executive Summary viewed on 2 March 2008 at . At the time of writing, several bills concerned with PMSCs, jurisdiction and crime were progressing through the US legislature in the face of consistent Administration resistance.
58. At Article 27(3).
59. In 1995 Mr Annan considered engagement of an effective PMC to separate lethal Hutu from those refugees who had escaped Rwanda by fleeing west to camps just inside the DRC border at Goma. He appeared to dally with the idea of hiring the notably capable firm 'Executive Outcomes.' Unfortunately for the refugees he chose a more politically palatable if ineffective path. See UN Press Release, SG/SM/6255 (12 June 1997) viewed on 30 April 2006 at
60. and UN Press Release SG/SM/6613/Rev.1 (26 June 1998) at p. 6 of 8 viewed on 9 April 2006 at .
61. Art. 43(1) is silent.
62. See D.W. Bowett, United Nations Forces (1964) 277.
63. Bowett, op. cit., fn. 37, p. 277 note 38 & p. 278.
64. Art. 24(1).
65. Today's intrastate conflicts are often fuelled by a mix of ethnicity, nationalism and criminality. These form potent hazards within sub-functioning states. Commentary has been plentiful. See R. Kaplan, 'The Coming Anarchy', Atlantic Monthly (Feb. 1994)
66. and J. Rapley, 'The New Middle Ages,' Foreign Affairs (May/June 2006.)
67. Although modern peacekeeping doctrine no longer requires consent, intrastate belligerents have offered it in recent years in sporadic and unpredictable fashion. See N. Fenton, Understanding the Security Council: Coercion or Consent? (2004) 22.
68. This is a modern variation on Siekmann's permanent model. See C.R. Siekmann, 'The Legal Basis for an Individually Recruited Permanent UN Force,' in D. A. Leurdijk (ed.), A UN Rapid Deployment Brigade: Strengthening the Capacity for Quick Response (1995).
69. S. D. Bailey, The Procedure of the UN Security Council (1988) 2nd ed., 294.
70. See E. DeWet, The Chapter VII Powers of the United Nations Security Council (2004) 341-2.
71. Cf. UN force regulations which refer to misconduct within deployed forces. See R. C. R. Siekmann, National Contingents in United Nations Peace-Keeping Forces (1991) 133.
72. Law enforcement amongst UN forces has always been a highly politicised concept. Institutional tolerance of notorious sexual predation has become a common news item. More recent allegations concern Pakistani troops' arms and gold trafficking in the DRC. Significantly, Pakistan is now the largest contributor of troops to UN peace operations. See D. Usborne, 'Troops Traded Guns for Gold with Militias Says Report,' The Independent (24 April 2007) viewed on 2 May 2007 at .
73. W. Munch, 'Wrongdoing of International Civil Servants - Referral of Cases to National Authorities for Criminal Prosecution,' (2006) 10 Max Planck UN Yearbook 87.
74. This is a matter of resurgent debate in the United States. The Supreme Court in Reid v Covert, 354 U.S. 1 (1957) held that the US Constitution prohibited prosecution of civilians by courts-martial as this would breach civilian fair trial rights. (The context was one of peacetime courts-martial of civilian dependants of military personnel.) At the time of writing two US military trials of civilians are on foot or forthcoming as a result of October 2006 changes to the US Uniform Code of Military Justice.
75. Both cases are likely to be appealed on constitutional grounds if they result in convictions. For details see K. Lanigan, 'Court-Martialing Civilian Contractor Ali while DOJ Slumbers,' Jurist (19 May 2008) viewed on 20 May 2008 at .
76. International Criminal Tribunal for the Former Yugoslavia (ICTY) Appeals Chamber, Prosecutor v Dusko Tadic a/k/a'Dule', 2 October 1995, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Judicial Reports 1994-1995 ILR 105 (1997) at para. 38.
77. Bowett, op. cit., fn. 37, p. 178.
78. Also, B. Simma, The Charter of the United Nations. A Commentary 2nd ed., (2002) 543. The nature of Art 29 is dealt with thoroughly by Simma at pp. 539-563.
79. For some historical background, see L.B. Sohn, 'The Authority of the United Nations to Establish and Maintain a Permanent United Nations Force,' (1958) 52 American Journal of International Law.
80. A basic document is the International Covenant on Civil and Political Rights UN doc. A/6316 (1966) 999 UNTS 171 and, in particular, Arts 7, 9, 10,14,15,16 and 26.
81. E.g., the Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, being GA Res. 43/173, annex G.A.O.R., 43rd Sess., Supp.49, p. 298, UN Doc A/43/49 (1988)
82. the Basic Principles for the Treatment of Prisoners being GA Res. 45/11, annex, G.A.O.R., 45th Sess., Supp. 49A, p. 200, UN doc. A/45/49 (1990); and pertinent Articles within the Universal Declaration of Human Rights GA Res. 217A (III), UN doc. A/810 at 71 (1948).
83. There appears to be no reason why company directors and management might prove any more or less upright or delinquent than the troops and commanders they employ.
84. A UN example is the Model Status of Force Agreement For Peace-Keeping Operations UNGA 45th Sess. Agenda Item 76 A/45/594 (9 October 1990).
85. In the context of a volunteer force proposal, the past UN Under-Secretary General Sir Brian Urquhart has enthused over how international duty could be an '... inspiring new dimension for national military service.' The objectives to be attained through a private employer would be no different. See B. Urquhart, 'The UN and International Security After the Cold War,' in A. Roberts & B. Kingsbury (eds), United Nations, Divided World 2nd ed., (1993) 94.
86. 1977 Protocol 1 Additional to the Geneva Conventions of 1949 1125 UNTS (1979) 3-608.
87. Convention for the Elimination of Mercenarism in Africa (1977) OAU doc. CM/817 (39) Annex II Rev. 3 (1977)
88. and the International Convention Against the Recruitment, Use, Financing and Training of Mercenaries (1990) 29 ILM 89-97. One is mindful in the present context of the nature of a Ch.VII SC Resolution and UN Arts 25 & 49; and the related significance of Arts 2(5) and 103.
89. At Art. 47(2)(c). Note that Additional Protocol I is in any case concerned with international armed conflicts which form a small minority of contemporary struggles.
90. At Art. 1(a).
91. At Arts 1(b) and 2(b).
92. Supra note 6 at para. 46.
93. Here Dr Shameem referred to the second convention at note 54.
94. See Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 75 UNTS 31 (or GC I) at Art. 49
95. Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 UNTS 85 (or GC II) at Art. 50
96. Geneva Convention Relative to the Treatment of Prisoners of War, 75 UNTS 135 (or GC III) at Art. 129
97. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 75 UNTS 287 (or GC IV) at Art. 146; and with a more restrictive ambit, Additional Protocol I Art. 85(2).
98. The International Criminal Tribunal for Rwanda.
99. Relevant factors may include systemic and regional influences, terms of settlement and third party conduct, 'ripeness,' various forms of peacekeeping and the role of force; mediation, re-negotiation and de-mobilisation; and the establishment of new norms and proxy governance. For a commentary on these, see F.O. Hampson, Nurturing Peace: Why Peace Settlements Succeed or Fail (1996) at Chapter 7.
100. In particular, some large consultancies have strong personnel and contractual links amongst the Permanent Five. A prominent example is Booz Allen Hamilton and the United States government. See .
101. Some of BAH's largest clients are the US armed forces and National Intelligence Director Mike McConnell was Booz Allen's director of defence programmes prior to his appointment in 2007. See A. Goodman, Democracy Now! (12 January 2007) viewed on 22 May 2008 at .
102. Some on the right wing of US journalism hold similar perceptions regarding their government. See M. Rubin, 'Privatize the CIA,' The Weekly Standard, Vol. 12 Iss. 20 (2007) viewed on 27 January 2007 at .
103. Economist, 'And Now, the War Forecast,' (15 September 2005) p. 1 viewed on 25 September 2005 at .
104. A 'Lessons Learned' unit was created within the Department of Peacekeeping Operations (DPKO) in April 1995. It was to study past peacekeeping and make recommendations for administrative improvements. In 2001, the unit was merged with the 'Policy & Analysis Unit' and re-named 'Peacekeeping Best Practices Unit.' It seems unlikely that its members might canvass notions as sweeping as these.
105. Art. 18(2).
106. On the nature of UN antipathy to contractors see V.-Y. Ghebali, 'The United Nations and the Dilemma of Outsourcing Peacekeeping Operations,' in A. Bryden & M. Caparini (eds), Private Actors and Security Governance (2006).
107. Peacekeeping has always been unsatisfactorily funded because it was not the product of an evolved policy determined at the end of the Second World War. Funding was precarious as early as the 1950s. See C. J. Nichols, Financing the United Nations: Problems and Prospects (1961) 18-20.
108. See the UN Secretary-General's Bulletin on Observance by UN Forces of International Humanitarian Law ST/SGB/1999/13 (6 August 1999)
109. also C. Greenwood, 'International Humanitarian Law and United Nations Military Operations,' Yearbook of International Humanitarian Law Vol. 1 (1998) at pp. 3-34
110. and A. Roberts & R. Guelff, Documents on the Laws of War 3rd ed., (2000) 26 and note 62.
111. The leading example isUnited States' disdain at the founding of the International Criminal Court and subsequent creation of Art. 98 agreements with scores of less powerful states. Interestingly, the Bush Administration has shown more tolerance where the trial of other nations' citizens has met with the Republicans' approval.
112. Reparations for Injuries Suffered in the Service of the United Nations [1949] ICJ Rep. 174, 182.