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PRIVATIZING THE PEACE

CONTRACTING PEACEKEEPING OPERATIONS TO THE PRIVATE SECTOR

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By Julian Reid

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The Montréal Review, October 2011

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For as long as humans have fought wars, there have been those willing to kill, and to risk their lives, for profit. The word soldier comes from the Romans' gold coin - solidus. A soldier by definition fought for money. With the advent of the nation-state, soldiers evolved from mercenaries to "patriots," and this basis for legitimate violence lasted until the end of the Cold War. Since the early 1990s the private military industry has been growing steadily as states have been willing to privatize their use of violence; since the U.S. invasion of Iraq in 2003, it has exploded. The highest estimates put the private military industry at $100 billion annually, although this is hard to peg down conclusively. (1)

The fall of the Soviet Empire meant that national armies all over the world downsized - at least in those fortunate parts of the world where the end of the Cold War meant an increase in stability. For others, it was quite the opposite. For example, in Somalia and Yugoslavia, the end of the Cold War meant a rapid escalation of instability and conflict as former allies lost interest in keeping governments in power. Moreover, U.S. experiences with private military and security companies (PMSCs) in Iraq and Afghanistan have resulted in serious problems, from operational misconduct and incompetence to dishonest business practices.

At the heart of the criticism of PMSCs is the legal ambiguity in which they operate. Although this article will show that there is de jure regulation (i.e., states and companies do have responsibilities and liabilities), there is a de facto legal grey area since enforcement is all but non-existent. Recognizing the significance of this lack of oversight, the Swiss Foreign Ministry and the International Committee of the Red Cross convened a 17-nation meeting that led to the creation of the Montreux Document in 2007, outlining the specific rights and responsibilities of states - those who hire PMSCs, those on whose territory they operate, and those in which they are based - as well as the companies themselves. While non-binding, the Document was created with input from the key governments involved in their use (2) and provides the template for proper regulation of the industry. States have not risen to the regulatory challenge that PMSCs represent. Governments have been either too weak or too unwilling to take serious action. The UN has the unique ability to regulate a large portion of the industry through a voluntary mechanism: bidding on UN contracts which would stipulate appropriate regulation. This would create a pool of legitimate companies worldwide. PMSCs are not going to disappear, much as many critics would like them to. Far better to have them regulated and put to good use.

The Col d War also brought about a revolution in peacekeeping. From the 1950s to the early 1990s the Security Council was often deadlocked, at least in areas of interest to the United States or the Soviet Union. Peacekeeping attempted to keep neutrality as a central tenet. Once a peace agreement had been reached, UN blue helmets were deployed to monitor ceasefires and ensure that everyone was playing by the rules. The end of the Cold War led to increased instability and the need for a new kind of peacekeeping, as well a renewed interest from the United States in helping struggling parts of the world. The 1990s saw the rise and rapid fall of a new world order in peacekeeping. Somalia, Rwanda and Bosnia became the nadir in three acts of UN peacekeeping in the 1990s. The recognition that changes were required led to the Brahimi Report, released in 2000. While the recommendations that were implemented did lead to improvements in the United Nations Department of Peacekeeping Operations (DPKO), they also papered over very real problems that make peacekeeping - now bigger than ever before in terms of active operations and number of troops deployed - less responsive, less efficient and less effective than it should be. The private sector offers the capability and knowledge to carry out these missions more quickly and effectively than ad hoc coalitions of soldiers that lack a unifying structure or proper chain of command.

In the following pages, I will examine peacekeeping and argue that, although it has grown and improved since the 1990s, it is still slow and inefficient. I will analyze the rise of PMSCs since the end of the Cold War and assess their current status, abilities and drawbacks. Also I will argue that a unique opportunity exists to bring PMSCs under proper oversight and regulation while leading to peacekeeping operations that deploy adequate levels of troops quickly and perform the tasks required without caveats. Privatizing the peace is an idea whose time has come.

PEACEKEEPING - BIGGER THAN EVER, BETTER THAN NOTHING  

In light of the three failures of the 1990s - Somalia, Rwanda and Bosnia - the UN recognized that a new paradigm in peacekeeping was required. The 2000 Brahimi Report recommended several changes, and the first decade of the 21st century has seen more peacekeeping than ever before. Including police and observers, the UN currently has over 90,000 people deployed around the world on peacekeeping missions. In terms of global troop deployment, it has the second highest in the world after the United States and has 20 active missions. (3)

On the surface, it seems the UN has learned from a tough period in peacekeeping and come back stronger than ever. The problem is that while the changes made to peacekeeping have allowed for more deployments, there still exist several structural issues.

You go, I'll pay

Perhaps most obviously, UN mandates are created and approved by the Security Council, where power remains fixed with the veto-wielding Permanent 5 (China, France, Russia, the United Kingdom and the U.S.). Only France and China, however, contribute troop levels of any real significance (each have over 2,000 troops on peacekeeping missions). The vast majority of peacekeepers come from poor countries, mostly south Asia and south and west Africa.

The number of Chapter VII Security Council Resolutions that pass (named after the article of the UN Charter that allows the Security Council to "determine the existence of any threat to the peace, breach of the peace, or act of aggression" and to take military and nonmilitary action to "restore international peace and security") is indicative. Fully 93 percent of the resolutions passed between 1946 and 2002 came after the end of the Cold War; however, now more than ever, the work is passed onto others. (4) The surge in peacekeeping has taken place due to the willingness of poor countries to commit troops to the cause. They are willing to do so for prestige, credibility, training and experience for their soldiers - and for money (more on this below). The financing of peacekeeping is the "inverse, mirror image" of its personnel contribution. (5) The top eight contributors to the peacekeeping budget - the U.S., Japan, Germany, the UK, France, China, Canada and Spain - provide over three quarters of funding. And the budget is growing: in 1999, it was $960 million, in 2004, $2.6 billion, and in 2009, $7.1 billion. (6) In a sense, then, peacekeeping is already outsourced: the rich countries, especially the P5, "displace the military, political and strategic risks and personnel costs of labour-intensive peacekeeping onto the poorer and weaker states of the global South." (7) Some even argue that peacekeepers are "cheap mercenaries from poor countries." (8)

UN military aid?

In effect, the UN subsidizes the militaries of poor countries. This is not done strategically to bolster a government but simply because it is, for now, the only way to ensure that peacekeeping can take place. The standard UN reimbursement rates to troop contributing countries (TCCs) are over $1,000 per month for each member of the deployment. This compares to an average salary of between $62.50-$87 per month for a member of the Pakistani army. (9) (Pakistan is the single largest contributor of personnel to UN peacekeeping missions.)

Of the top 12 contributors to peacekeeping, three were ranked "Not Free" and five "Partly Free" by Freedom House in 2008. Along with Pakistan (not free), they include Bangladesh, Nigeria, Rwanda, Ethiopia and Egypt. These states receive $1,000 per month per soldier as well as generous reimbursement for equipment that they bring. Troops also receive free training. These are, in effect, subsidies that may "[allow] dysfunctional states.to sustain larger militaries than they might otherwise have." (10)

It is beyond the scope of this article to analyze the full effects of these UN payments to militaries. Still, the dangers of such non-strategic subsidies are clear. In some cases, these militaries target their own citizens and are involved in wars with neighbours (Rwanda's meddling in the Democratic Republic of Congo is one example). This is certainly not what most people have in mind when they think of blue helmets striving for peace and security in the world.

Effective, compared to nothing

The Brahimi Report identified the "ideal pathway" to a peacekeeping mission: first, forge a political basis for peace in the country or region; second, craft a suitable mandate in the Security Council; third, mobilize the resources that are appropriate and calibrated to the mandate. But in reality, the opposite direction is the norm: first, states determine the resources they are willing to contribute; second, a mandate is cobbled together from what is available; third, a political solution is sought. (11)

This is the key problem in peacekeeping today: the focus on what can be done rather than what should be done. While realism should be applauded - there is no sense in creating a mandate that cannot be fulfilled - better solutions need to be found. The status quo may be better than nothing; something more effective is better still.

Theoretically, all aspects of a UN peacekeeping mission (military, police and civilian) come under the "operational authority" of the Head of Mission, usually the special representative of the Secretary-General. Peacekeepers are under the "operational control" of the Force Commander. It is important to note that "operational control" is not the same as "command" - many countries (including Canada) have laws that stipulate that command of the armed forces cannot be given to a foreign commander. The compromise is that the Force Commander will transmit orders to the National Contingent Commander (NCC), the ranking officer of each country's contingent. These orders are based on prior agreement between the Secretary-General and the TCC. Tasks are assigned with the consultation of the NCC. (12) The Force Commander cannot change the mission, deploy a nation's troops outside of the agreed upon area of responsibility without the prior consent of the TCC, and cannot divide the contingents into components for differing tasks. (13)

Issues relating to national contingents in peacekeeping missions are resolved through "mutual consultation," where the UN might accept restrictions on the use of a contingent based on concerns such as force protection, safety and security, supposedly "without compromising operational effectiveness." (14) Of course, it is near impossible not to compromise operational effectiveness when accepting not to put peacekeepers in harm's way. Twenty-first century peacekeeping is often specifically designed to put peacekeepers in harm's way to make or keep the peace. The bigger issue is that the commander with overall responsibility for the mission does not have full authority over his or her troops. However, given that it is reliant on voluntary contributions from TCCs, the UN has little choice in the matter. It must accept the restrictions, just as NATO has had to put up with national "caveats" in Afghanistan. (15)

Virginia Page Fortna's assessment of peacekeeping is rosier than the above analysis. She has written that peacekeepers tend to deploy in difficult situations and that the international community rarely denies a call for intervention. (16) A main question posed in her work (too often not asked) is: "What difference does it make having peacekeepers present rather than absent?" In her view, peacekeeping has tangible positive effects: "peacekeepers make an enormous difference to the prospects for peace, not only while they are present, but even after they depart." (17) As to her central question, does peacekeeping work? a "resounding yes." (18) This is a fair analysis, but it lacks a careful look at the alternatives. If peacekeeping is better than a baseline of no intervention at all, it shows that it is a worthy activity but not necessarily that it is being done as well as it could be. Surely missions that are deployed faster and are more flexible to operational requirements - division of units into different components for tasks, a total lack of caveats and restrictions - would be more effective still.

Moving in and reaching full strength quickly is of critical importance:

Although there is little data on how effective peacekeepers are, strong initial deployments seem much better equipped to stem violence than staggered troop arrivals [as often happens due to delays in getting peacekeepers]. In Sierra Leone.a contingent of about 10,000 reached the country within the first year of the mission - and violence immediately declined. In the Democratic Republic of the Congo, where it took about three years to reach that same troop strength, attacks continued for six years before finally petering out.

Likewise, missions in Darfur and the DRC, areas the size of France and Western Europe respectively, suffer from desperately low troop numbers compared with the sizeable area they must police. (19)

Size is not the whole story, and it is dangerous to draw stark comparisons between different situations based on one variable (it can be argued that the conflict in the DRC is inherently more complex and less easy to master than that of Sierra Leone, for example). But it is enough to point out that, when faced with a complex situation, a lack of necessary troops and a slow deployment is not the answer.

THE PRIVATE MILITARY AND SECURITY INDUSTRY - PROBLEMS AND POTENTIAL

An important point must be made from the outset: although the view that PMSCs and their personnel are "mercenaries" is understandable (colloquially, the definition of the term is one who is paid to be a soldier), under international law, they simply do not meet the definition and hence are not illegal. (20) Efforts in recent years, notably by South Africa, to produce legislation banning the industry, have been failures - something the government of South Africa seems to have understood.

Private military groups are not a new phenomenon, but their role in the modern world changed fundamentally at the end of the Cold War. During that long conflict, military spending on national armies on both sides was astronomical, and the U.S. and USSR were regularly engaged in small-scale proxy wars and conflicts. Armies were financed and armed by the superpowers in their respective quests for dominance. With the end of the Cold War came the end of that support, and many areas grew more unstable once it was withdrawn. Simultaneously, armies around the world began to downsize, leading to a surfeit of trained soldiers. In Africa especially, these two developments led to a rather obvious consequence: unemployed soldiers found employment with PMSCs, hired by governments and businesses to maintain stability.

In the United States, Secretary of Defence Dick Cheney hired Halliburton, a large energy, engineering, construction and government services company, in 1991 to consult with the U.S. armed forces to find cost-saving measures that could be put into place. Halliburton's main recommendation was to contract out extensively. While the U.S. had always used private contractors to some degree, this began a new era where the scale of private services took on vast new proportions. (21) This was especially true of advanced weapons and technological equipment, which often came with their own workers to service and operate them. Throughout the 1990s the privatization of certain aspects of U.S. military operations grew. In Iraq, the largest U.S. military operation in decades showed just how big a role PMSCs had come to play.

European nations are now almost wholly reliant on PMSCs for troop deployment and support due to a lack of transport capabilities: "To get to Afghanistan [in 2001-2002], European troops relied on a Ukrainian firm that, under a contract worth more than $100 million, ferried them there in former Soviet jets." (22)

A crucial reason for the use of PMSCs of different types was the unwillingness of the Western world to provide military support in Africa after the failure of the UN and U.S. missions in Somalia in 1992-1993. The 30 U.S. military deaths and the videos of the naked corpses of U.S. servicemen being dragged through the streets of Mogadishu led to the "Somalia Syndrome" of the U.S. population, and, by extension, the Clinton administration. Two Presidential Decision Directives (PDDs) are most often cited as representing this: PDD-25 in 1994 and PDD-56 in 1997. Both aimed to limit U.S. military involvement in peacekeeping operations to situations where "American national security interests - especially those of an economic nature - were at stake." (23) The infamous case of Rwanda in 1994 highlighted the consequences of lack of action by the international community.

PMSCs were involved in several conflicts in the 1990s, notably hired by the governments of Angola and Sierra Leone to defend natural resources, including "blood diamonds" and oil, from rebel groups. It was not until 2003, however, that the industry came into the mainstream consciousness with the U.S. invasion of Iraq. By 2006, "private security companies' hired guns [had] grown into the second largest military contingent in Iraq, after America's forces," (24) larger than any other single member of the Coalition of the Willing, including Britain. The U.S. military was dependent on private contractors to enable it to carry out such a large invasion. But the PMSC "gold rush" began in earnest after President George W. Bush famously declared that the mission was accomplished in May 2003. The escalating violence that summer made the situation ever more unstable. The U.S. army was quickly overstretched in carrying out military operations; meanwhile, foreign workers were in need of protection, as were key ministries in Baghdad and oil installations in the South of Iraq. The U.S. has put billions of dollars into Iraq, and much of that has gone to private companies. These are by no means all PMSCs but almost any enterprise at work in Iraq uses the services of heavily armed private security personnel.

They have been, for the most part, indispensable. PMSCs "are critical - their security and logistical support services are needed now more than ever." (25) Even in strictly military terms, the U.S. was overstretched in the country, and there was no way that U.S. forces could take on the various security duties that PMSCs currently provide, not to mention the logistics and supply companies that support the military itself with food, water, ammunition and oil. But the serious issues that have arisen with the extensive use of PMSCs show the need for stricter regulations and for a serious reappraisal - in Washington as well as by the international community as a whole.

The most infamous case involving PMSCs is the Abu Ghraib prisoner abuse scandal. The U.S. government hired an American PMSC, CACI, to identify and hire "qualified individuals to serve as intelligence analysts and interrogators at Abu Ghraib and elsewhere in Iraq." (26) According to reports, "all of the translators and up to half of the interrogators involved were private contractors.The U.S. army found that contractors were involved in 36 percent of the proven incidents and identified [six] employees as individually culpable. (27) While several U.S. military personnel were convicted in court, the civilian employees never were, due in part to their exemption from both U.S. military justice and Iraqi courts at the time. Private security contractors in Iraq long operated in a grey area outside both international and national legal systems.

It is the ad hoc nature of the use of PMSCs in Iraq that has been most worrisome. Contracts worth millions of dollars (if not more) are given out, often without competitive bidding and with such speed that it is hard to believe that a serious analysis of the situation has occurred. The cause of this is the poor post-war planning that has dogged the U.S. since 2003. As they were rocked on their heels and trying to regain control over the situation, PMSCs provided seemingly cheap solutions and did not require more troops - a key selling point to a government waging an unpopular war and loth to call up more army troops or National Guards than necessary. Quick solutions, however, led to more problems: the PMSC employees working at Abu Ghraib were "hired by simply amending an existing contract from 1998 - for computer services overseen by the Department of the Interior." (28) Easy fixes are not always what they seem.

This is especially true when already-large contracts go over-budget. PMSCs do, of course, make profit out of wars. But the accusation of war-profiteering - overcharging, billing for services not rendered, even "a fraudulent scheme of subsidiaries and false charges" - clearly goes beyond honest profit-making. The key issue is one of oversight. Neither the U.S. nor Iraqi governments have a clear picture of PMSC activity in the country. While the U.S. certainly has more means than Sierra Leone to monitor PMSCs it awards contracts to, it does not behave this way:

In terms of oversight and control, once a contract is granted, the provisions of US legislation (while fuller than most) are meagre. The [U.S. General Accountant Office] provides some oversight of the awarding and implementation of [private security company] contracts, but this is limited. Congress is notified of contracts valued at more than $50 million, a threshold generally considered too low to ensure sufficient democratic accountability. Contracts are frequently split up or partially subcontracted to avoid congressional oversight. (29)

In recognition of their poor image, it is in fact the companies themselves that seem to be agitating the most for change. The top 60 companies in Iraq have organized an association to represent the industry and to aid with registration and regulation. In June 2004 (as the transitional Coalition Provisional Authority [CPA] dissolved and power went to the Iraqi government), the Private Security Company Association of Iraq (PSCAI) was formed, recognizing that "it is imperative in order to garner the trust and understanding of the Iraqi people and the global community that a high-level of transparency and accountability exist within [the] industry." (30) While laudable, self-regulation is simply not good enough in the private military industry. Proper regulation and oversight must come from national governments and from the international community. Still, the industry's attempts to form mechanisms to ensure good behaviour show that a large number of companies recognize that legitimacy is the sine qua non of long-term success.

The gold rush mentality that followed the U.S. invasion meant that some companies were formed almost overnight, hiring inexperienced workers who simply wanted to be given important roles that involved carrying guns. Some security workers have been described by U.S. military commanders as "cowboys" with no training and bad attitudes, wearing nondescript uniforms without nametags. Although not under the control of the U.S. army, they are representatives of the U.S. in Iraq. Iraqis know that if a security contractor kills an Iraqi civilian illegally, they are not subject to Iraqi law and are likely only to be extradited. (31) Lack of proper regulation means a carte blanche for private workers that, for good reason, traditional soldiers do not have. As one author pointed out in 2006:

As a result of these gaps [in regulation], not one private military contractor [was] prosecuted or punished for a crime in Iraq (unlike the dozens of U.S. soldiers who have), despite the fact that more than 20,000 contractors have now spent almost two years there. Either every one of them happens to be a model citizen, or there are serious shortcomings in the legal system that governs them. (32)

It is clear that the status quo is not an option. Proper regulation is required. The question is how to attain a workable, enforceable regulatory framework. In the next pages I will present an international option.

Since the beginning of the decade, PMSCs have been active in Somalia. Piracy, illegal fishing and the dumping of toxic waste have become serious maritime security issues. Each of the three Somali governments (the Transitional Federal Government and the administrations of quasi-independent Somaliland and Puntland) has engaged different PMSCs to counteract these activities and to secure maritime trade, with varying degrees of success. There are differing views on the implications of such contracts. None of the three governments have the capacity to create and enforce legal norms and thus ensure security. Small has argued that PMSCs can help states with legitimate needs, inadequate capabilities to build, defend and exert greater control over their territories and institutions. (33) Others worry that they will hinder durable solutions and create more problems when weak states cannot supervise or use PMSCs effectively, and that fragmentation of authority may ensue. (34) Questions of transparency and accountability have become critical.

Uniquely, one such contract was paid for entirely through development aid. Puntland used the security company Nordic Crisis Management (NCM) to aid in port security. This was paid for by the Norwegian state development agency, NORAD. It should be emphasized that NCM only provided training for Puntland's coast guard rather than taking on those duties themselves (as companies in Somaliland and Somalia have done). (35) However, it does show a growing awareness that the private sector has skills and the ability to pass those skills on.

A similar situation occurred in Liberia following that country's civil war. Under an agreement with the UN, the U.S. agreed to help rehabilitate the Armed Forces of Liberia (AFL). The U.S., in turn, contracted out the process to two PMSCs, DynCorp and Pacific Architects and Engineers (PA&E) in 2004. (36) The two companies are carrying out security sector reform (SSR) in what may become the model for U.S. military engagement in Africa. The new U.S. African Command, AFRICOM, shows renewed American interest in the region, in large part due to terrorist threats posed by Islamists in Somalia and Al-Qaeda in the Islamic Mahgreb, but does not have a large troop component due to American military missions elsewhere. (37)

DynCorp and PA&E were chosen because they had earlier been selected for a five-year Indefinite Delivery/Indefinite Quantity (IDIQ) country with the U.S. State Department "to support peacekeeping and security efforts in Africa." (38) The two companies had separate but interrelated roles: DynCorp demobilized the existing armed forces and recruited, vetted and trained the new AFL and the Liberian Ministry of Defence. PA&E's role was to field the forces and provide ongoing mentorship.

PMSCs also work for the UN and other international organizations, providing logistical support, supply chain management, and training programs. (39) The DPKO has made working with the private sector a priority for 2010, attempting to create more permanent linkages rather than ad hoc contracts for services. Peacekeeping is already reliant on the private sector, with certain aspects already privatized. The UN Office of Field Support is seeking agreements with private companies to ensure logistical stand-by capacity. (40)

PMSCs, then, have been used by very different governments. In Sierra Leone, Angola, Somalia and elsewhere, weak states have relied on hired firepower to shore up their legitimacy. (41) On the other hand, they have been used by the most important government in the world to support the work of the most powerful military in human history. (42) What has been the common theme is the inability or unwillingness of governments to take full responsibility for regulating the companies they hire and to hold them accountable.

Still, for all the controversy in Iraq and elsewhere, PMSCs have grown and evolved. The industry has honed its services in training and equipping, war-zone logistics, humanitarian response, post-conflict reconstruction, infrastructure repair and security sector reform. (43) Not every company is a model corporate citizen, but many have strived to provide good services in an honest way. The response to the problems raised above is not simple vilification but proper regulation and oversight. The next section lays out a model for regulation and the privatization of peacekeeping.

A FRAMEWORK FOR THE PRIVATIZATION OF PEACEKEEPING OPERATIONS

PMSCs offer fast deployments, a mandated number of troops on the ground, and full authority to the UN Force Commander to make decisions and have orders carried out without delay, restriction or caveat. The following framework for contracting peacekeeping to the private sector attempts to lay out the legal, contractual, and practical framework for privatizing aspects of UN peacekeeping operations.

Legal Obligations and Recourse

The legal framework for the privatization of peacekeeping already exists in the "Montreux Document on pertinent legal obligations and good practices for States related to operations of private military and security companies during armed conflict," which came out of an initiative of the Federal Department of Foreign Affairs of Switzerland and the International Committee of the Red Cross (ICRC). Montreux "does not endeavour to establish new regulations but simply seeks to provide guidance on a number of thorny legal and practical points, on the basis of existing international law." (44) As stated above, the issue is not a lack of regulation but a lack of understanding and enforcement. PMSCs do have legal obligations under international humanitarian law (IHL), as do the states that hire them ("contracting states"), the states on whose territory they operate ("territorial states"), and the states in which a PMSC is based, registered or incorporated ("home states"). In particular, the Geneva Conventions apply. (45)

The UN, of course, is not a state, but as the contractor could follow the good practices set out in Montreux - the Document makes note of this fact, stating that "in many instances, the good practices for Contracting States may also indicate good practices for other clients of PMSCs, such as international organizations, NGOs and companies." (46) This includes rigorous selection and contracting standards: the acquisition of information on PMSCs prior work and references from previous clients as well as information on the companies' ownership structures, personnel, "subcontractors, subsidiary corporations and ventures." (47) The process should be transparent and supervised and the lowest price should not be the "only criterion for the selection of PMSCs." Ensuring that companies and their personnel have not been engaged in criminal activity is crucial, as are "up-to-date personnel and property records" and proper training and expertise, not only on operational matters but on national, international and human rights laws, the use of force, and on religious, cultural and gender issues. (48) The contracting party must also ensure that the PMSC has a proper structure that can implement its legal obligations, provide internal investigation and discipline, regular performance and incident reporting, and a means for third parties and PMSC personnel to report misconduct. (49)

A chief complaint of certain PMSCs in Iraq was their lack of nametags and other identifiers. A uniform and a firearm (and, for the UN, a blue helmet) are not enough to identify a person in authority. Nametags are part of most armies' uniforms and would need to be a requirement of PMSCs operating under a UN mandate. A non-transferable identity card, shown upon demand (under reasonable circumstances), should also be required. (50)

Montreux makes an obvious point: "Contracting States are particularly well-placed to ensure respect for international humanitarian law. It is relatively easy for them, when selecting companies and entering into contracts with them, to influence how PMSCs operate in the field." (51) By following the good practices set out and monitoring behaviour and ensuring accountability, contracting states or organizations have the ability to minimize and punish the bad while rewarding the good. However, due to inability or unwillingness, states have not undertaken the role of enforcing regulation. The UN has a unique ability to regulate a large part of the industry. In order to bid on lucrative peacekeeping contracts companies would have to agree to come under regulation. Moving into a structured, regulated status would become a market advantage. This pool of regulated, legitimate companies would also be more likely to be hired by states, NGOs, companies and other international organizations. Any entity that hired a non-regulated PMSC would come under serious scrutiny.

Criminal jurisdiction and responsibility would have to reside with the UN. No state has taken strong enough action to ensure that crimes are answered for by PMSCs - a main reason for the legal limbo they have operated in for many years. This framework includes the creation of a UN Court of Military Justice, perhaps subsumed into the International Criminal Court (ICC) structure. Research on and input from the military justice systems around the world would allow the UN to replicate the best practices from all states. While this would require a major investment of time and resources, it is likely an inevitable step even without the decision to use PMSCs. The question of responsibility for crimes committed by peacekeepers is not a simple one. Responsibility is divided between the UN and the troop contributing country (TCC) in question. The UN has claimed responsibility for the forces put under its command on several occasions, but the definition of "command" is a sticking point. The standard is to use the "effective control" test. The UN has stated that a "UN peacekeeping force established by the Security Council or the General Assembly is a subsidiary organ of the UN" (52) and on several occasions, notably Congo and Cyprus, the organization has acknowledged its international responsibility for the conduct of its peacekeepers. However, this is only the case when troops are under its "exclusive command and control." It is not liable for off-duty activities, as in cases of sexual exploitation and abuse. In these cases the onus is on the TCC. (53) This does not mean that the UN has no responsibility in such cases but that it can recoup related costs (paying severance to victims, etc.) from the TCC. (54) A UN Court of Military Justice would try peacekeepers for crimes, regardless of whether they occurred on- or off-duty, and could deduct civil liabilities from the PMSCs contract.

Such measures are necessary not because PMSC personnel are more prone to illegalities but because putting armed people in positions of authority inevitably leads to problems. Traditional peacekeepers have not behaved as model citizens. Every operation comes with inevitable complaints from the population about serious misbehaviour. In 2007, the UN reported 748 allegations of peacekeeper misconduct. Alleged crimes included sexual abuse, trafficking of contraband and theft. (55)

This is just one way that contracts can be used to ensure proper behaviour from the private sector, as is shown in the next section.

Umbrella Contracts

The U.S. Department of State's "Indefinite Delivery/Indefinite Quantity" (IDIQ) umbrella contracts offer a useful model for UN peacekeeping. One of the key advantages of using PMSCs is their ability to deploy and reach the needed troop level rapidly, and "surge" (scale up operations) on short notice when the operational environment requires. However, the time it would take to put contracts to tender, assess the bids and agree to terms would threaten this critical temporal advantage. IDIQ contracts could be in place before a crisis arises. These would be based on geography, language abilities, operational expertise (e.g., reconstruction versus ceasefire monitoring) and number of personnel. When a crisis arose and/or the Security Council created a peacekeeping mandate, the decision on who would receive the contract would be narrowed down to a small number of companies that met the requirements of the mission. These would be expected to provide bids within a set time period, say, 14 days.

IDIQs would be strictly monitored and evaluated at each stage of a contract, which could be rescinded at any time if there existed evidence of collusion or other illegal behaviour. In addition, a thorough audit would be part of the IDIQ review and renewal process, which would take place at a set interval (three or five years).

In order to qualify for IDIQ, PMSCs would be required to agree to UN regulations based on the Montreux Document and to strict transparency and oversight. This would include information on personnel and accounting processes. As well, receiving payment on operational contracts (the specific contracts for a given operation) would be staggered. Payments would begin immediately to ensure deployment and operational efficacy. However, these would be at cost, (perhaps also including an honourarium) while profit payments would be held in trust through securitized bonds. Only later, either after the mission is completed (if the operation is short-term) or through a multiple payments mechanism (if long-term), to ensure the PMSC is abiding by the law, its obligations and its mandate. Contracts would be rescinded in cases of serious breaches. For more minor infractions, penalty clauses in the contract would be activated - penalizing a company monetarily if it did not live up to its commitments.

The idea of using contracts to regulate PMSC behaviour is not a new one. Laura A. Dickinson has written extensively on the topic: "Contracts could be drafted to explicitly extend relevant norms of public international law [in this case, Montreux] to private contractors, provide for enhanced oversight and enforcement, and include.specific terms such as carefully drafted training and accreditation requirements." (56) Dickinson has focused on individual contracts, arguing that these allow for tailoring to specific companies and situations. She argues that the diversity of the market does not lend itself to a one-size-fits-all approach and that contracts, in contrast to other forms of regulation, have the virtue of being made-to-measure. (57) This framework seeks to maintain that flexibility (through individual operational contracts) while providing for a system of regulation and oversight by the UN (through IDIQs).

Oversight and accountability

Civilian oversight is at the heart of the framework. As was argued PMSCs have been inadequately monitored due to states being either unable or unwilling to properly oversee and hold accountable the companies they hired. By providing that oversight, and by creating a pool of companies that have agreed to come under strenuous regulation and to meet the requirements of training (both operational and legal), and transparency the UN would divide the industry into the legitimate and the unregulated. Any country hiring a PMSC would find itself open to intense moral suasion to pick from the legitimate pool.

This will require an evolution in the Department of Peacekeeping Operations. One of the main problems for the U.S. has been a lack of growth in the bureaucracy - it has not kept pace with the post-9/11 boom in PMSC contracts. (58) This has led to asymmetries of information and staff overstretch in government. In Liberia, for example, U.S. embassy staff were stretched too thinly and the U.S. American military leader on the ground did not have the background or support needed to properly oversee the work done by DynCorp. This meant a reliance on the company's technical opinions and the possibility for overcharging. (59) Thus it is critical for the DPKO to grow in order to ensure it has civilian oversight on the ground and at UN headquarters to keep pace with the information coming in. Otherwise data overload is inevitable.

***

UN peacekeeping has made important improvements in the last decade. However, it remains beholden to what countries are willing to contribute and in what type of actions they are willing to allow their armed forces to engage. The focus is on what can be done, rather than on what should be done. This needs to change. Privatizing peacekeeping operations does not mean washing one's hands of the situation - the civilian and police components of peacekeeping would remain, and the civilian side of the operation would become even more important as transparency and accountability take place in the field as well as at UN headquarters in New York.

PMSCs have grown in number and importance over the last 20 years. The invasion of Iraq saw more private sector involvement than in any other conflict in modern history. As the Iraqi "gold rush" winds down, the industry is looking ahead to new challenges. Much has been learned in recent years and industry best practices have been established. What private companies cannot do, however, is provide the rigid transparency and accountability that the world expects of armed forces.

The UN, by establishing IDIQ contracts, would create a pool of legitimate companies under proper regulation. Peacekeeping operations could deploy in days or weeks after a Security Council resolution, rather than months or years. Rules of engagement would be created to match the mandate and what is needed in a given situation. A clear chain of command would exist and the peacekeeping forces would be flexible, adapting to an ever-changing environment dynamically, and better able to provide the security needed by people living with, or coming out of, violence. The private military and security industry would be properly regulated, and the UN would have the capacity to launch the best peace operations in its history. This is a win-win solution to two critical issues: effective and efficient global peacekeeping and proper regulation of PMSCs. It is time to privatize the peace.

***

This paper was originally written for the eighth annual REGIS/CIPSS Graduate Student Conference held at  McGill's Moot Court on March 27, 2010. It was subsequently presented at the Academic Council of the United Nations June 2010 conference in Vienna.

***

Illustration: Yossi Lemel (1995) in "The Design of Dissent" by Milton Glaser & Mirko Ilic (Rockport Publishers, 2005)

***

NOTES

1 Quoted in "Blood and treasure." The Economist, November 4, 2006, 71.

2 These include the United States, United Kingdom, Iraq, Afghanistan, Sierra Leone, Angola, South Africa, Canada and Australia.

3 Elizabeth Dickinson, "Soldiers of Misfortune," Foreign Policy No. 172 (May/June 2009), 40.

4 Philip Cunliffe, "The Politics of Global Governance in UN Peacekeeping," International Peacekeeping Vol. 16, No. 3 (June 2009), 328.

5 Ibid., 329.

6 Elizabeth Dickinson, 40.

7 Cunliffe, 324.

8 Ibid., 333.

9 Elizabeth Dickinson, 41.

10 Ibid., 40.

11 Cunliffe, 324-325.

12 Christopher Leck, "International responsibility in United Nations peacekeeping operations: Command and control arrangements and the attribution of conduct," Melbourne Journal of International Law Vol. 10, No. 1 (May 2009), 352-353.

13 Leck, 353.

14 Ibid.

15 Much has been written on the issues related to caveats in NATO. For example, Stephen M. Saideman, and David P. Auerswald, Nato at War: Understanding the Challenges of Caveats in Afghanistan , APSA 2009 Toronto Meeting Paper. Available at SSRN: http://ssrn.com/abstract=1450476

16 Virgina Page Fortna, Does Peacekeeping Work? Shaping Belligerents' Choices After Civil War , (Princeton University Press, 2008), 44.

17 Ibid., 113.

18 Ibid., 125.

19 Elizabeth Dickinson, 41.

20 According to the 1977 UN definition, a mercenary is one who: "(a) is specifically recruited locally or abroad in order to fight in an armed conflict; (b) does, in fact, take direct part in the hostilities; (c) is motivated to take part in the hostilities essentially by a desire for private gain and, in fact, is promised, by or on behalf of a party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that party; (d) is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflict; (e) is not a member of the armed forces of a party to the conflict; and (f) has not been sent by a state which is not a party to the conflict on official duty as a member of the armed forces." This is a cumulative definition; that is, all six parts must apply for an individual to be defined as a mercenary. There are serious issues with labelling soldiers in the private military industry as mercenaries under this definition, as many are wont to do: In part (a) of the definition, recruitment is done specifically for a particular armed conflict. But if most soldiers are employees of a company then it is inapplicable. The need, under sub-paragraph (b), that they take direct part in the hostilities excludes military advisors and training personnel, as well as logistics teams and even, perhaps, security personnel who provide protection for sites and materials and fire only in self-defence. The "psychological element [of] motivation" is problematic under sub-paragraph (c), making the desire for private gain a part of the definition. (U.S. and British workers of private security firms might also be motivated by the attacks of 9/11 and 7/7 in their decision to go to Iraq.) Trying to establish motivation is extremely difficult. Also under part (c), "mercenaries" could exclude themselves by having the client-government make them de jure members of the country's armed forces. Given that there are issues with several parts to the definition (all of which must be met in order for it to be applied), very few PMSCs or their employees can be categorized as such. Two further factors that weaken the definition are (1) that it does not apply to civil wars, only to international conflicts and national-liberation movements (struggles against colonial rule); (2) "several countries, including France and the United States, are not parties to the agreement." See David Shearer, Private Armies and Military Intervention, Adelphi Paper 316 (London: The International Institute for Strategic Studies/Oxford University Press, 1998), 17-18.

21 PBS. Private Warriors. Frontline Documentary. (Accessed December 6, 2006).

22 Singer, par. 6.

23 Wayne Madsen. Genocide and Covert Operations in Africa, 1993-1999. (Queenston ON: Edwin Mellen Press, 1999), 25.

24 "Blood and treasure." The Economist , 70.

25 James Kwok. "Armed entrepreneurs: private military companies in Iraq." Harvard International Review (Spring 2006), 34.

26 "CACI in Iraq." (Accessed December 7, 2006.)

27 Singer, par. 23.

28 Singer, par. 34.

29 Caroline Holmqvist. Private Security Companies: The Case for Regulation . SIPRI Policy Paper No. 9. Stockholm International Peace Research Institute (2005),51.

30 Johann R. Jones. "Promoting regulation and accountability in Iraq." Journal of Internal Peace Operations, Vol. 2, No. 3 (November-December 2006) , 18.

31 PBS, Private Warriors.

32 Singer, par. 22.

33 Michelle Small, "Privatization of Security and Military Functions in Africa," ACCORD Occasional Papers Vol. 1, No. 2 (2006).

34 Stig Jarle Hansen, "Private Security & Local Politics in Somalia," Review of African Political Economy No. 118 (2008), 586.

35 Christopher Paul Kinsey, Stig Jarle Hansen and George Franklin, "The impact of private security companies on Somalia's governance networks," Cambridge Review of International Affairs, Vol. 22, No. 1 (March 2009), 155.

36 Sean McFate, "Outsourcing the Making of Militaries: DynCorp International as Sovereign Agent," Review of African Political Economy No. 118 (2008), 646.

37 Ibid., 653.

38 Ibid, 646.

39 Kwesi Anin, Thomas Jaye and Samuel Atuobi, "The Role of Private Military Companies in U.S.-Africa Policy," Review of African Political Economy No. 118 (2008), 613-628.

40 United Nations. Peace Operations 2009 Year in Review, 8,

41 See Angela McIntyre and Taya Weiss, "Weak governments in search of strength: Africa's experience of mercenaries and private military companies," From Mercenaries to Market, Eds Simon Chesterton and Chia Lehnardt (Oxford University Press, 2007).

42 See David Isenberg, "A government in search of cover: Private military companies in Iraq," From Mercenaries to Market, Eds Simon Chesterton and Chia Lehnardt (Oxford University Press, 2007).

43 Ibid., 654.

44 Federal Department of Foreign Affairs and International Committee of the Red Cross, Montreux Document on pertinent legal obligations and good practices for States related to operations of private military and security companies during armed conflict (Montreux, Switzerland: September 17, 2008), 5.

45 Ibid, 11-13.

46 Ibid., 16.

47 Ibid., 17.

48 Ibid., 17-18. This was followed by DynCorp in Liberia, where the AFL now has better gender equality rules than the U.S. military. See McFate, 652.

49 Ibid., 18.

50 Ibid., 19.

51 Ibid., 33.

52 UN Secretariat, Responsibility of International Organizations: Comments and Observations Received from International Organizations, 56th Session, UN Doc A/CN.4/545 (June 25, 2004), 17.

53 Leck, 351.

54 Ibid., 352.

55 Elizabeth Dickinson, 41.

56 Laura A. Dickinson, "Contract as a tool for regulating private military companies," in From Mercenaries to Market , Eds. Simon Chesterton and Chia Lehnardt (Oxford University Press, 2007), 218.

57 Ibid., 231.

58 McFate, 650.

59 Ibid., 650-651.

 
 

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