Privatising Peace: A Corporate Adjunct to United Nations Peacekeeping and Humanitarian Operations

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Privatising Peace

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Privatising Peace A Corporate Adjunct to United Nations Peacekeeping and Humanitarian Operations Malcolm Hugh Patterson

© Malcolm Hugh Patterson 2009 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No portion of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, Saffron House, 6–10 Kirby Street, London EC1N 8TS. Any person who does any unauthorized act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The author has asserted his right to be identiﬁed as the author of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2009 by PALGRAVE MACMILLAN Palgrave Macmillan in the UK is an imprint of Macmillan Publishers Limited, registered in England, company number 785998, of Houndmills, Basingstoke, Hampshire RG21 6XS. Palgrave Macmillan in the US is a division of St Martin’s Press LLC, 175 Fifth Avenue, New York, NY 10010. Palgrave Macmillan is the global academic imprint of the above companies and has companies and representatives throughout the world. Palgrave® and Macmillan® are registered trademarks in the United States, the United Kingdom, Europe and other countries ISBN-13: 978-0-230-22425-4

hardback

This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. Logging, pulping and manufacturing processes are expected to conform to the environmental regulations of the country of origin. A catalogue record for this book is available from the British Library. A catalogue record for this book is available from the Library of Congress. 10 18

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Printed and bound in Great Britain by CPI Antony Rowe, Chippenham and Eastbourne

‘… the world may not be ready to privatise peace.’ – Kofi A. Annan, UN Secretary-General*

‘If you’re not going to use the private sector, who are you going to use? The only countries that do provide peace-keeping services are among the poorest countries in the world, so it’s no small wonder when UN peacekeeping fails.’ – Doug Brooks, President, International Peace Operations Association†

*UN Press Release SG/SM/6613/Rev. 1 (26 June 1998). Reproduced consistent with UN copyright requirements. † Reproduced with author permission. E-mail communication 19 Sept. 2009.

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Contents Preface

x

Abbreviations, Acronyms and Initialisms

xii

1

Introduction 1.1 An intractable problem 1.2 Chapter themes Notes

1 1 7 10

2

Alternatives to Ad Hoc Sovereign Forces 2.1 Introduction 2.2 Legions and guard forces: origins and problems 2.3 Three historically prominent alternatives to ad hoc forces 2.3.1 A permanent force of rotating states’ units 2.3.2 Standby forces 2.3.3 A permanent and volunteer UN legion 2.4 Regional peacekeeping and the declining power of the UNSC 2.5 A miscellany of other alternatives to ad hoc forces 2.6 Summary Notes

13 13 13 15

3

4

15 17 18 22 27 29 29

From Mercenary to UN Contractor? 3.1 Introduction 3.2 An historically pervasive means of waging war 3.3 Who is a mercenary? Problems of definition and classification 3.4 An unexceptional mercenary: the UN member state 3.5 The UN view of non-state mercenarism 3.6 A taxonomy of private military, security and related services 3.7 An advocate’s case 3.8 Summary Notes

63 73 74

The Public-Private Security Environment 4.1 Introduction

88 88

vii

39 39 40 43 48 52 60

viii Contents

4.2 4.3 4.4 4.5 4.6 4.7 4.8 4.9 4.10 5

6

History old and new The rise of private authority Corporate interests do not duplicate states’ interests Some UN issues Implications arising from recent US policy changes Moral hazards and the PMSC The de-stabilising capacity of resistant states The UN and resistance to change Summary Notes

89 91 100 104 109 110 116 121 125 125

Other Industry Aspects 5.1 Introduction 5.2 Some contractor issues 5.3 An industry association 5.3.1 Capacity 5.3.2 Regulation 5.3.3 Legitimacy 5.4 An industry plan 5.4.1 Reasons for scepticism 5.4.2 US government interests 5.5 Six prominent vulnerabilities 5.5.1 The occasional indeterminacy of PMSC weaponry 5.5.2 Adherence to international humanitarian norms 5.5.3 Dishonest employees and the negligent employer 5.5.4 Problems in political risk assessment 5.5.5 The inappropriately violent PMSC 5.5.6 Political nepotism and market failure 5.6 Summary Notes

140 140 141 148 148 152 156 158 158 163 167 167

A Modest Proposal 6.1 Introduction: solving problems 6.2 An adequacy of Charter powers and the new directorate 6.3 Discipline and criminal law 6.4 Measuring efficacy in the past and (more adeptly) in the future 6.5 A further step: revived trusteeship + contract forces 6.6 Five legs to a new UN apparatus 6.7 Some criticisms

192 192 193 194 200

168 170 170 172 174 175 176

202 206 207

Contents ix

6.8 7

Summary Notes

209 209

Conclusion 7.1 Introduction 7.2 A reprise: the Blackwater ploy and a wider problem 7.3 The sense in diplomacy 7.4 Summary: perception and misperception Notes

218 218 218 221 223 225

Appendices I Proposed Contractor Peacekeeping and Intervention Model II UNDPKO Organisational Chart 2007 III DFS Organisational Chart 2007

228 229 230

Glossary

231

Bibliography Primary Sources 1. Interviewees listed alphabetically 2. Public Lectures, Industry Conferences, Debates and Briefings 3. Documents (a) Treaties (b) United Nations Documents (i) Selected General Assembly Resolutions (ii) General Assembly and Security Council Resolutions in Shortened Form (iii) International Court of Justice Cases (iv) Other Courts and Tribunals (v) Selected Policy Documents, Reports and Manuals (c) Miscellaneous Declarations, Guidelines, Reports and Principles (d) United States Government Documents (i) Legislation (ii) Cases (iii) Field Manuals, Audits, Directives, Briefings and Reviews Secondary Sources Selected Books, Articles and Reports

232 232 232 233

Index

253

233 233 233 233 234 234 234 234 237 237 237 237 237 238 238

Preface The progression from research document to published manuscript is a well-trodden path, albeit one likely to expose an author’s flair or otherwise in adapting to the needs of different readers. In this example the reader is encouraged to judge the result as a transformation in three aspects: conformity to industry prescriptions as to form and style; discriminating revision and updating of earlier material; and some judicious editing. The latter was driven by evolving circumstances, a requirement for greater concision and a clearer view of shortcomings in past work. The reader will also notice a shift between disciplines in Chapter 6. That segment contains a new peacekeeping model, described in part from a legal view. This is a necessary diversion and I do not believe the language of a second discipline will cause the content to appear tedious to the reader who does not possess a legal education. The manuscript has been intentionally fashioned to suit the general reader while retaining footnoting and attribution appropriate to a work of research. In performing necessary changes I have been fortunate to benefit from advice and guidance provided by my editor at Palgrave Macmillan, Ms Alexandra Webster and her assistant Ms Renée Takken. I wish to acknowledge the reproduction of my own material published elsewhere courtesy of two other firms. Mr Simon Lord of Oxford University Press advised an attribution requirement concerning reproduction of part of an article I wrote for the Journal of Conflict and Security Law Volume 13, Number 2 (2008). Much of this material is located in Chapter 6. Mr Gary Piper, Permissions and Subsidiary Rights Manager at Taylor and Francis (UK) advised the necessity for similar attribution in relation to parts of my chapter entitled ‘Private Military and Security Companies and the International Trade in Small Arms and Light Weapons’, in Andrew Tan (ed.), The Global Arms Trade Europa Routledge (Oxford 2009). That material is to be found mostly within Chapter 5. I am also grateful to Ms Kumiko Sugiyama of UN Permissions for prompt authority to reproduce two UN flow charts in Appendices II and III. Many parties assisted in the creation of the distilled and revised document which became this book. The interviewees generously provided their time during frequently demanding schedules. I am grateful to each. Several people deserve particular mention. Doug Brooks was both a helpful interviewee and remains the energetic force behind an indusx

Preface xi

try e-mail list, a discussion group and a journal, each of which proved to be valuable research tools. Ms Leslie Dingle of the Law Library at Cambridge went out of her way to locate obscure materials. The unflappable Robert Spragg of the Jesus College Information Technology Unit repaired my computer several times at a moment’s notice. And Ms Wendy Cooke at the Centre of International Studies dealt adeptly with various inquiries. James R. Davis is responsible for an earlier taxonomy which I expanded and adapted in Chapter 3. Professor Charles Garraway supplied knowledgeable advice on legal aspects of military operations. Those opinions assisted in early drafts of Chapter 6. The same chapter formed the core of the recent OUP article, which also benefited from helpful criticism supplied by Professor Philip Allott, Dr Roger O’Keefe and Ms Sarah Nouwen. Dr Tarak Barkawi diligently delivered prompt and perceptive critiques. His disciplined perspicacity was always valuable. Professor Brendan Simms was kind enough to read most of the work and contribute characteristically incisive criticism. Discussions with Dr Chris Kinsey regarding the PMSC industry and its development were always fruitful. He continues to provide reliable opinions and obliging counsel on academic matters more generally. And my wife Margaret patiently read perhaps a dozen drafts, in which she corrected text or suggested prudent changes. Malcolm Hugh Patterson April 2009

Abbreviations, Acronyms and Initialisms

AMIS ASEAN AU BAPSC CEMAC CEO CIA CIS DCAA DDR DFS DOMREP DPKO DRC ECOMOG ECOWAS EO EU/EC FM GAO ICG ICRC IFOR IGAD IGO IHI IPOA ISAF

African Mission in Sudan Association of South-East Asian Nations African Union British Association of Private Security Companies Economic and Monetary Community of Central African States Chief Executive Officer Central Intelligence Agency Commonwealth of Independent States Defense Contract Audit Agency (USA) Disarmament, De-Mobilisation and Re-Integration Program Department of Field Support (United Nations) Mission of the Representative of the Sec. Gen. in the Dominican Republic Department of Peacekeeping Operations (United Nations) Democratic Republic of Congo Economic Community of West Africa Monitoring Group Economic Community of West African States Executive Outcomes European Union / Community Field Manual Government Accountability Office (USA) International Crisis Group International Committee of the Red Cross Implementation Force (NATO, in Bosnia & Herzegovina) Inter-Governmental Authority on Development Inter-Governmental Organisation International Humanitarian Intervention International Peace Operations Association International Security Assistance Force xii

Abbreviations, Acronyms and Initialisms xiii

KFOR LOGCAP MONUC MPRI NATO NCO NGO OAS OAU OECD OHCR ONUC ONUCA ONUMOZ ONUSAL ONUVEN OSCE P5 PKO PMC PMSC PSC PSO RAF RMA ROC RUF SADC SAIC SAIIA SALW SBI SF SFOR SIGIR SIPRI SoFA SSR

Kosovo Force (NATO) Logistics Civil Augmentation Program United Nations Mission in the Democratic Republic of Congo Military Professional Resources Inc North Atlantic Treaty Organisation Non-Commissioned Officer Non-Government Organisation Organization of American States Organization of African Unity Organisation for Economic Co-Operation and Development Office of the UN High Commissioner for Human Rights United Nations Operation in the Congo United Nations Observer Group in Central America United Nations Operation in Mozambique United Nations Observer Mission in El Salvador UN Obser. Miss. for the Verification of Elections in Nicaragua Organization for Security and Cooperation in Europe Permanent Five Members of the UN Security Council Peacekeeping Operation Private Military Company Private Military and Security Company Private Security Company Peace Support Operations Royal Air Force Revolution in Military Affairs Reconstruction Operations Center (Iraq) Revolutionary United Front Southern African Development Community Science Applications International Corporation South African Institute for International Affairs Small Arms and Light Weapons Program Secure Border Initiative Special Forces Stabilisation Force in Bosnia and Herzegovina Special Inspector-General for Iraqi Reconstruction Stockholm International Peace Research Institute Status of Forces Agreement Security Sector Reform

xiv Abbreviations, Acronyms and Initialisms

UN UNAMIC UNAMIR UNAMSIL UNASOG UNAVEM I/II/III UNCIVPOL UNDOF UNEF I/II UNFICYP UNGA UNGCI UNHCR UNIFIL UNITA UNITAF UNMEE UNMIH I/II UNMIK UNMOGIP UNOMIL UNOSOM I/II UNPREDEP UNPROFOR UNSAS UNSC UNSCOM UNSF UNTAC UNTAET UNTAG UNTEA UNTSO US

United Nations United Nations Advance Mission in Cambodia United Nations Assistance Mission for Rwanda United Nations Mission in Sierra Leone United Nations Aouzou Strip Observer Group United Nations Angola Verification Mission United Nations Civilian Police United Nations Disengagement Observer Force United Nations Emergency Force United Nations Peacekeeping Force in Cyprus United Nations General Assembly United Nations Guards Contingent in Iraq Office of the High Commissioner for Human Rights United Nations Interim Force in Lebanon National Union for the Total Independence of Angola Unified Task Force (Somalia) United Nations Mission in Ethiopia and Eritrea United Nations Mission in Haiti United Nations Mission in Kosovo United Nations Military Observer Group in India and Pakistan United Nations Observer Mission in Liberia United Nations Operation in Somalia United Nations Preventive Deployment Force United Nations Protection Force (Former Yugoslavia) United Nations Standby Arrangements System United Nations Security Council United Nations Special Commission United Nations Security Force in West New Guinea United Nations Transitional Authority in Cambodia United Nations Transitional Administration in East Timor United Nations Transition Assistance Group (Namibia) UN Temporary Executive Authority (West New Guinea) United Nations Truce Supervision Organisation United States of America

1 Introduction

1.1

An intractable problem

The history of United Nations peacekeeping has frequently been one of failure.1 Nor is it clear how persistent peacekeeping problems may be addressed within the constraints of present practice. Over several decades UN members and their Organisation have proved unconvincing in efforts to address these difficulties. This book advances a radical proposal intended to remedy some enduring weaknesses. The discriminating procurement of private military and security companies (PMSCs) in certain circumstances seems likely to improve aspects of UN peacekeeping and other operations. For several reasons, this is a view conveyed with a sense of caution. For however lucid and reasoned, supporters of contract alternatives are unlikely to succeed without securing effective support amongst the more influential states. Their authority will be required to persuade others to put aside the more intractable states’ purposes that cause repetitive and familiar deficiencies in UN operations. Nor are these purposes peculiar to the less powerful. The symptoms take several recognisable forms: inadequate financial contributions, insufficient troop donations, manipulation of the international civil service, poorly trained and equipped troops and officials; incoherent Security Council mandates, fallacious reasoning regarding antagonist inclination to use violence; poor management, doctrinal confusion over impartiality and neutrality; and regional peacekeeping carrying selfish and sometimes far from peaceable agendas. A major cause of the present malaise has been the retreat of the affluent. Even before changes to international obligations wrought by the events of 9/11, most wealthy, militarily competent states would 1

2 Privatising Peace

not contribute sizeable numbers of disciplined troops and adequate equipment to UN operations. Aside from a handful of exceptions, by the end of the twentieth century peacekeeping operations had been left to a majority of less affluent, less developed states.2 Missions since the turn of the century3 have mostly been manned by states’ troops possessing fewer and poorer quality resources, while their governments exercise limited influence in Security Council deliberations. This remains the case today.4 In early 2009 a harsh economic climate has erected another barrier. Wealthier states are likely to resist calls for generous budgets (or simply payment of their assessable contributions in some cases.) Nor are their modest numbers of deployed personnel likely to rise. The emergence of recent shortages was acknowledged by the High Level Panel report in 2005, something intensified by calls for further deployments which by early 2007 had risen to over 82,000 uniformed personnel on 18 missions around the world.5 This escalation was expected. In late 2006 then Under Secretary-General Guehenno anticipated the number to rise to perhaps 140,000.6 An already chronic imbalance between demand and supply is particularly evident in ambitious missions in Africa7 and the Middle East.8 None of this is likely to motivate leaders of the more privileged states, who continue to fear involvement in peacekeeping because the consequences carry at least a dozen undesirable risks. These may be summarised concisely: uncertain financial costs ultimately limited by a politically enforced ceiling; undesirable depletion of state military resources; generally uncertain risks to state prestige; provocation of ethnic or religious sensitivities within the donor state population; a more general and unexpected unpopularity in foreign engagements and the de-stabilising consequences of unanticipated escalation. These may become manifest in-theatre, within the donor state, at the UN or elsewhere. There are concerns over an absence of relevant military skills in donor deployments; inadequate and/or unsuitable equipment within donor forces; and deleterious effects on missions caused by cultural, religious, ethnic, linguistic or doctrinal differences between donor state troops and other states’ troops. There is often a wariness of the consequences of unclear or covert agendas held by other states’ governments; concern that other states’ troops will squander funds or materiel offered in good faith; unease that any deployment is likely to be judged discriminatory because demand for humanitarian assistance is more or less without limit but resources will always be limited; ambivalence or more overt scepticism towards sometimes shifting

Introduction 3

Security Council goals; inhibiting constitutional aspects of executive or legislative authority which sometimes arise with UN deployments of sovereign forces; and last, concern by some governments at the relative benefits likely to accrue to other participants. At this juncture a provocative question arises: might suitably governed deployments of private contractors augment or to some extent replace lightly trained, poorly equipped or insufficiently numerous states’ troops?9 Could a military corporation be an ethical service provider to the UN Security Council via agency principles? Moreover, if this seems feasible in theory, how might practicalities be addressed? In other words, should the concept appear commercially viable, how might better outcomes be accompanied by morally desirable models of conduct; by functional criminal laws which conform to internationally recognised procedural and substantive standards; by industrial obligations which are ethically defensible; and all of it created within powers granted by the UN Charter and the political constraints and enablements that accompany this constitutional document? * Eric Prince is the well-known proprietor and recently departed chief executive of ‘Blackwater’,10 a PMSC having a brief history of operational effectiveness coloured by multiple criminal justice issues. His past employees or contractors today face allegations of multiple manslaughter, firearms trafficking and murder while associated with his company.11 US Congressional and Senate opponents tend to portray Prince as a ruthless war profiteer. He has certainly secured rapid and spectacular profits from the US treasury in a controversial fashion.12 Aside from these matters his firm is noteworthy for other reasons. The company draws on probably unequalled industry resources in a range of logistic and paramilitary capabilities. For example, Blackwater possesses light fixed wing transport and at least one propeller-driven ground attack aircraft; several helicopters and a sizeable anti-piracy ship; company designed and manufactured armoured personnel carriers and dirigibles – the latter created for surveillance purposes. Equally important is access to a formidable range of military expertise which can be deployed to carry out a range of tasks or to train others, either in the US or elsewhere. Mr Prince has also demonstrated considerable entrepreneurial flair. For example, he proposed sending 250 of his contractors to Darfur in order to train 1000 local soldiers in the effective defence of internally

4 Privatising Peace

displaced refugees.13 Putting foreseeable constraints to one side and even if this exercise was to achieve measurable success, critics will correctly observe that the positive effect would be tiny in a region as vast as the south and west of Sudan. However, Mr Prince’s intentions may not have been entirely plain. His suggestion seems to have been an act of political assertiveness rather than a literal claim. If so, his more genuine purposes lie elsewhere. He knows that contractors are not likely to replace sizeable formations of insurgent or state forces. As he suggested, contractors can and do supply ‘force multipliers’ to others. It would seem likely that future profits will be earned from continuing to provide instruction in both basic and more specialised military skills.14 However, the choice of Darfur was manifestly untenable in diplomatic and probably military terms as well. One can nonetheless imagine another client. Skilled assistance in various forms also seems likely to enhance the effectiveness of UN operations. And should his firm deliver success in places other than Darfur through either more competent UN troops or more proficiently trained host forces, he will be able to point to ‘proof of concept’ – which could be profitably repeated. The prospect of Blackwater securing a peace operations contract with the UN may seem improbable for ideological, ethical or perhaps more practical reasons. Some may be ingrained. In particular, the ordure attached to twentieth century mercenaries tends to cloud informed examination of today’s military and security services industries. This is noticeable amongst certain UN organs and states. Defenders of the status quo will inevitably emphasise peacekeeping successes achieved with more conventional forms of mission support. Examples might include operations in Namibia, El Salvador, Nicaragua, Mozambique and to a lesser degree, East Timor and Cambodia.15 Even so, it would appear imprudent to reject the rich possibilities that Blackwater’s less tainted competitors could offer the UN. This seems especially pointed where ineffective Security Council responses to future armed conflicts are likely to result in gross human rights abuses. There are other arguments. Persuasive reasons suggest that states have for some time collaborated in the creation of a marketplace in which PMSCs have grown and prospered. However, these companies face pressures – notably in the form of gradually declining opportunities in Iraq and the deepening global recession. This ebb in Iraq in particular has spurred corporate expansion elsewhere. For example, some belligerents today show less respect for the traditional impartiality attached to humanitarian NGOs and IGOs. Consequently, humanitar-

Introduction 5

ian workers suffer escalating violence. By contrast, states and PMSCs now co-operate in freshly politicised ‘hearts and minds’ programs with armed security as part of the corporate package.16 Mr Prince and those occupying rival corporate positions realised some time ago that the UN is not immune to the effects of those changes that have assisted PMSC expansion over the last 20 years. The UN Organisation has to an extent welcomed gradual encroachment by business in less sensitive areas – something readily demonstrable in various aspects of modern peace operations.17 And despite a publicly unreceptive posture towards the industry, the UN has already canvassed armed private security to escort its humanitarian convoys.18 That scenario occupies the less contentious end of a wide spectrum of operations. International humanitarian intervention sits at the opposing pole. A capacity to assist in IHI is likely to be required of a future PMSC contractor for two reasons. First, the UN arguably requires this capability if it is to bear most of the organisational and legal justification in the service of a responsibility to protect. Second, few if any states are likely to provide generous armed assistance in the face of the next humanitarian disaster. Whether well-trained contractors might subdue by force those who inflict gross human rights abuses on others remains an adventurous proposition, certainly in legal terms. Even so, in light of UN experiments in Somalia and the ‘no-fly’ zones in Iraq, IHI readdresses the contentious role of coercion in meeting both Charter objectives and normative concepts of human rights. These were recently championed by UN advisers in A More Secure World;19 authoritatively if somewhat less persuasively by heads of state at the 2005 World Summit;20 and international humanitarian intervention sits well with wide and enthusiastic support for the Canadian paper The Responsibility to Protect;21 a document which embodied rhetorically popular if at present unconvincing principles.22 Much has been written about the expanding importance of duties to which these documents allude. Yet little has been done in the name of the UN to resist abuses where the application of force is manifestly necessary in order to extinguish human suffering of an extensive scale and intensity. Before a contract deployment might occur, the interests of both the UN and PMSCs dictate settling one matter in particular. Over the last five years journalists, lawyers and human rights groups have justifiably criticised the conduct of armed contractors in Iraq (and to some extent Afghanistan) in the absence of a functional criminal justice regime. By contrast, UN agents of tomorrow should contemplate a criminal justice system that provides both clarity of obligation and reliable

6 Privatising Peace

enforcement. This is possible. UN organs hold the authority to create an endogenous criminal justice system that meets international legal standards, yet is not inimical to either legitimate corporate purposes or limits to UN Charter authority. This apparatus should also improve on those inconsistent and unreliable criminal processes presently applied to states’ troops who serve in and sometimes weaken UN operations. Such a structure is described in Chapter 6 and in diagrammatic form in Appendix I.23 The goal of this approach is to build on the UN strength in multilateral legitimacy and avoid the inherent UN weakness in ad hoc recruitment. A claim to improve operations would seem worth exploring should it improve outcomes for three potential beneficiaries. The first are those civilians who will otherwise suffer more extensive and more acute harm, probably as a consequence of intrastate conflicts. The second is the UN membership. When a future Secretary-General appeals for troops to staff a mission, governments seeking benefits for themselves would no longer contemplate peacekeeping’s limited virtues while evaluating its considerable risks and uncertain costs. There would be other options. The third beneficiary is the UN Organisation and the values it represents. Should the UN adopt more successful methods of peacekeeping and perhaps intervention, these would lessen the disapproval frequently aimed at both the Security Council and its Secretariat. Criticism directed towards them has not always been reasonable. Both have struggled with a peacekeeping apparatus that neither was originally created to administer. At the same time, distrust amongst both weak and powerful members has worked to inhibit effective administration. The alternative is a continuation of those notorious and depressingly fragile states’ negotiations over peacekeeping responsibilities. These inevitably mix aversion to risk with a competitive desire to serve individual state interests. Both have proved corrosive to concepts of peacekeeping and prospective humanitarian intervention. Alternatives to ad hoc peacekeeping are far from new. What is new in this book is a claim to the merit in contract PMSC assistance within a system of governance given explicit form. In consultation with a preferred corporate provider, professional ex-soldiers possessing particular expertise in peacekeeping could be individually screened and selected by staff within a new UN Directorate of Military Contracting. Subject to objective criteria and chosen on merit, these troops would make up the peacekeeping component of a contract force. Where operations are likely to prove hazardous or where international humanitarian intervention requires skilled fighting troops, the likelihood of a UN

Introduction 7

response has proved correspondingly remote. Hence the requirement for a dedicated combat capability. The underlying premise is hardly novel. The rationale in hiring competent professionals to carry out both kinds of work lies in a modern execution of an ancient tradition adapted to UN circumstances. A contractor might begin its UN life as a modest asset – perhaps a single battalion containing a mix of skills in infantry, armour, signals and engineering – supported by air mobility and a robust logistic tail. And if UN members perceive the company as successful, it is plausible to imagine that a contract force might grow to become a reinforced brigade of 5000. Several experts claim that the latter figure would have been sufficient to quell much of Rwanda’s genocidal turbulence in 1994.24 The concept of a contract force is likely to appeal to a mixed audience. Supporters might include the disenchanted multilateralist or probusiness ideologue. Both should be mindful that there exist sound counter-arguments, restraints and hurdles. Some are compelling. For example, the Security Council may prove unwilling to deploy a competent contractor for suitable tasks in the face of public or more obscure political issues. For that matter, the Permanent Five might form an unhealthy elite, deciding on a deployment (or perhaps non-deployment) to promote a selfish collective interest.25 Governments of the other 187 states26 are likely to find this conduct less than valuable. There would also be certain start-up and ongoing costs to be met by UN members. These expenditures are likely to be modest in terms of the value derived and certainly in comparison with the military budgets of most states. Even so, some of the more tyrannical members in particular would bluntly contest the idea of a corporate contractor. They would be justifiably distrustful of purposeful forces in the service of invigorated mandates. The UN Secretariat is likely to prove another antagonist, being understandably averse to territorial incursions. And should the concept flourish, even the most competent brigade of military contractors would face practical limits to what it could achieve relative to its limited size and the interstate (or intrastate) reactions its deployment may provoke. Last, in the age of the sole superpower, the nature of an uncertain American reception would prove pivotal to success or failure.

1.2

Chapter themes

The second chapter is entitled ‘UN Deployments: Alternatives to Ad Hoc Sovereign Forces’ and its purpose is to provide historical context. The first section contains a description of early proposals for UN legion and

8 Privatising Peace

guard forces and their three historically prominent forms. At this point contract forces are introduced through a handful of useful comparisons with volunteer legions. The next section examines difficulties associated with regional peacekeeping organisations and the closely related decline of UN Security Council authority. The following section canvasses the modern miscellany of rapid reaction proposals, most of which are unlikely to be realised. The summary suggests that no model has persuasively negotiated the more obstructive consequences of states’ interests. Yet demands on the UN continue to grow. Future operations are likely to require considerable human and materiel resources, swift deployment and donor appetite for lengthy commitments. Chapter 3 is titled ‘From Mercenary to UN Contractor?’. Here the mercenary phenomenon is also given historical context and disentangled from imperfect classification and a frequently misperceived past. The reasons for state and UN hostility are examined and the concept of ‘state mercenarism’ is advanced – something far more likely to have proved hazardous to civilian lives in living memory than either the corporate type or the handful of often incompetent rogues who achieved notoriety in the twentieth century. A taxonomy of civilian and military categories then identifies each niche in today’s market. This is followed by a promoter’s case supported by a list of various claims and several propositions regarding the intolerance directed at more recent non-state mercenarism. The fourth chapter is headed ‘The Public-Private Security Environment’ and is broadly concerned with state/corporate relations. Corporate objectives do not mirror the evolving interests of states and friction has always existed between security-related suppliers and governments. Should the UN pay corporate agents to augment or supply peacekeeping operations on its behalf, this change will invite new and somewhat unexpected risks. These dangers would affect both the contractor and its UN client. Examples peculiar to the industry are set alongside those more general perils endemic in international business transactions. Another development has been the recent change in US counter-insurgency doctrine – something likely to expand the opportunities for the PMSC industry. An unintended consequence will almost certainly be UN operations that become more complicated. Less ambiguous moral hazards and illicit markets provide more disturbing concerns. Several governments may also have their own reasons to work against the contractor option. Their efforts are likely to destabilise attempts by other UN members who seek to improve future operations

Introduction 9

through outsourcing. Last, supported by parts of the membership, the institutional culture of the UN Organisation is likely to resist intrusion by those viewed as ideological adversaries. Chapter 5 is titled ‘Other Industry Aspects’ and continues earlier scrutiny of risk, but via closer evaluation of claims made by the private sector. The early section begins with an overview of contentious aspects of the industry. These include a questionable grasp of the politics of state failure; the translation of reasons for unrest into a business vernacular that is as likely to obscure as illuminate; and aspects of cost, reliability, corporate social responsibility, litigation risk and corporate influence over UN agendas and priorities. This is followed by an evaluation of further claims asserted by a prominent industry trade group. They refer to capacity, regulation and the nature of legitimacy sought and exercised. The same trade lobby has also proffered an ambitious business plan to extinguish African conflicts. These claims are not without some merit, but they emerge as less flattering, more complicated and qualified. A synopsis of six of the industry’s vulnerabilities precedes a summary. The sixth chapter is titled ‘A Modest Proposal’ and depicts a fresh governance model suited to a corporate peacekeeping and intervention force. Early observations on UN/donor criminal justice shed light on chronic shortcomings arising from sovereign deployments. Curiously, these tend to receive limited and fleeting public attention. The new structure is intended to harness contractor strengths while addressing hazards identified in the prior two chapters. This includes means to measure contractor capability and standards of competence on which the UN could rely; a fair criminal justice system; and inculcation of a normative attachment to the rule of law. The proposal lies in five parts: a constitutional basis; a new disciplinary structure; performance measurement; a hypothetical deployment in support of UN and NGO agencies in a revived form of UN trusteeship; and a summary of those elements that constitute one view of a practical model. The seventh chapter is the conclusion. The introduction poses questions raised in the first chapter and circumstances likely to cause change. The second section refers to an example of peacekeeping politics in order to illuminate enduring and repetitive problems. The third section suggests the creation of a ‘framework of engagement’ in which various stakeholders may see it in their interests to negotiate greater integration of corporate capacities with the UN bureaucracy. Tenacious diplomacy could prove rewarding where there exist sufficiently compatible interests; and the maintenance of peace and security is likely to

10 Privatising Peace

benefit from enhanced private sector contributions. Despite sporadic and often colourful rhetoric to the contrary, UN members are well aware that there has never been a clear division between private and public resources in armed conflict. States have always employed both. Charter purposes are also likely to benefit from an expanded role for carefully selected and conscientiously governed commercial interests. These are likely to strengthen the range of present services conducted under the rubric of peacekeeping in its various generational forms. Reliable access to a skilled military adjunct would also enable the UN to canvass newer and more contentious tasks. Notes 1 There have been relatively few studies conducted on the matter and the bulk of these are pessimistic. See D. Bratt, ‘Assessing the Success of UN Peacekeeping Operations’, in M. Pugh (ed.) International Peacekeeping Vol. 3 No. 4 Frank Cass (London Winter 1996); P.F. Diehl, International Peacekeeping Johns Hopkins Press (Baltimore 1993); and in less detail and some ambiguity, M.A. Browne, United Nations Peacekeeping: Historical Overview and Current Issues CRS Report for Congress, Library of Congress (Wash. D.C. 31 Jan. 1990). For book length analysis see D.C. Jett, Why Peacekeeping Fails Palgrave (New York 1999). A more polemical account is to be found in F.H. Fleitz Jr, Peacekeeping Fiascoes of the 1990s Praeger (Connecticut 2002). Examples of UN failure are to be found in Haiti, Bosnia, Rwanda, Somalia and Lebanon. 2 On shortages prior to 2000 see Report of the Panel on United Nations Peace Operations (2000) Doc. no. A/55/305–S/2000/809 (hereafter Brahimi Report) paras 103–4; 60–1. Summary of the recommendations viewed on 6 Nov. 2004 at . 3 From 1999 the Security Council reinvigorated peacekeeping with new missions including UNMIK, UNTAET, UNAMSIL, MONUC & UNMEE. 4 The leading six contributors at present are overwhelmingly poor states. See United Nations, Ranking of Military and Police Contributions as at 31 March 2007, viewed on 13 April 2007 at . Ireland, India and Sweden were consistently active, and the small states of Fiji and Nepal have also contributed out of proportion to their size. See N. MacQueen, The United Nations Since 1945: Peacekeeping and the Cold War Longman (London 1999) p. 84. One view holds that there is a three tier structure, where developing countries making up _ of troops under UN command; some industrialised states and NATO in particular act under national command but authorised by the UN; and the US is a free agent. See S. Chesterman, You, the People OUP (Oxford 2004) pp. 109–10. 5 As at 28 Feb. 2007 there were 82,411 uniformed personnel serving in 18 UN peacekeeping operations. ‘Uniformed personnel’ refers to troops, military observers and UN police. See United Nations Peacekeeping Operations Back-

Introduction 11

6

7

8

9 10

11

12

13

14

15

ground Note viewed on 6 April 2007 at . For Mr Annan’s slightly earlier remarks see A More Secure World, Our Shared Responsibility: Report of the Secretary-General’s High Level Panel on Threats, Challenges and Change (Dec. 2004) (hereafter A More Secure…) viewed on 2 Feb. 2005 at at p. 5 ‘Executive Summary’. Jean Marie-Guehenno, Presentation by the Undersecretary-General for Peacekeeping Operations to the Special Committee on Peacekeeping Operations (19 Oct. 2006) viewed on 6 Nov. 2006 at . K. Annan, In Larger Freedom: Towards Development, Security and Human Rights for All UN doc. A/59/2005 downloaded on PDF file on 29 March 2005 from (hereafter In Larger Freedom…) See para. 111. M. Verrinder, ‘Peacekeeping Boom Strains the UN’, (26 Aug. 2006) viewed on 27 Aug. 2006 at . The question is not new. See C. Kinsey, Corporate Soldiers and International Security Routledge (London 2006) p. 2. ‘Blackwater USA’ became ‘Blackwater Worldwide’ then ‘Xe.’ Mr Prince resigned his position as CEO in March 2009. See M. Sauer, ‘Scandal Ridden Blackwater CEO Steps Down,’ ABC News (2 March 2009) viewed on 3 March 2009 at . See respectively G. Thompson & J. Risen, ‘5 Guards Face Charges in Iraq Deaths’, New York Times (5 Dec. 2008) viewed on 7 Dec. 2008 at ; D. Friedman, ‘Blackwater Could Face Sanctions for Improper Arms Shipments’, Congress Daily (7 Nov. 2008) viewed at on 9 Nov. 2008; Seattle Times, ‘Seattle man could face charges in Blackwater case’ (14 Nov 2008) viewed on 18 Nov 2008 at . US House of Representatives, Committee on Oversight and Government Reform, Memorandum (1 Oct. 2007) viewed on 16 Jan. 2009 at . S. Weinberger, ‘Facing Backlash, Blackwater has a New Business Pitch: Peacekeeping’, Wired 18 Dec. 2007 viewed on 10 Jan. 2009 at . Some of this will overlap with security sector reform – now the subject of rich debate as this market segment expands. See the recent US Institute of Peace conference on the topic at . An apparent failure of the 1970s was UNTAG in Namibia, rescued by political changes in the late 1980s. The ONUVEN electoral process in Nicaragua also succeeded at around the same time. ONUSAL in El Salvador and ONUMOZ in Mozambique were also examples of better results. INTERFET (later UNTAET) in East Timor was a complex effort widely viewed as successful until premature evacuation by UN forces and subsequent civil unrest. UNTAC in Cambodia resulted in a lengthy period of authoritarian government but this has at least supplied relative stability.

12 Privatising Peace 16 C. Spearin, ‘Private, Armed and Humanitarian? States, NGOs, International Private Security Companies and Shifting Humanitarianism’, Security Dialogue Vol. 39 No. 4 pp. 363–78. 17 These are described Infra ch. 7. 18 UN Office for the Coordination of Humanitarian Affairs, Use of Military or Armed Escorts for Humanitarian Convoys Discussion Paper and Non-Binding Guidelines (14 Sept 2001) pp. 7 & 11. 19 A More Secure… at paras 88; 199–203. 20 Revised Draft Outcome Document of the High Level Plenary Meeting of the General Assembly of September 2005 Submitted by the President of the General Assembly Future Doc. A/59/HLPM/CRP.1/Rev.2 at para. 118 ‘The Responsibility to Protect’ (Advance Unedited Version). 21 The Responsibility to Protect Report of the International Commission on Intervention and State Sovereignty (Ottawa Dec. 2001). 22 Author attendance at ‘The Responsibility to Protect’, a lecture by proponent and author Mr Gareth Evans, Chair of the International Crisis Group. Seymour Centre, University of Sydney 24 Oct. 2008. 23 cf. the present DPKO and DFS organisational flow charts, both viewed on 6 April 2009 at , and , being Appendices II and III respectively,. More generally, see N. Fenton: Understanding the Security Council: Coercion or Consent? Ashgate Pub (2004) at Ch V. 24 S.R. Fell, Preventing Genocide. How the Use of Force Might Have Succeeded in Rwanda Carnegie Commission on Preventing Deadly Conflict (Wash. D.C. 1998) pp. 4; 10–11. Mr Annan also believed that a mechanised brigade deployed in Kigali promptly ‘might have stabilised the situation.’ See D.A. Leurdijk (ed.), A UN Rapid Deployment Brigade: Strengthening the Capacity for a Quick Response Netherlands Institute for International Relations (Clingendael The Hague 1995) at p. 12 & note 10. Maj-Gen Dallaire – the UNAMIR commander – 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 p. 38 note 37 in Leurdijk, A UN Rapid… See also Dallaire quoted in Fell, Preventing… at p. 2. 25 This is something implied by the ‘procrastination’ to which Francois Heisbourg refers. See B. Urquhart & F. Heisbourg, ‘Prospects for a Rapid Response Capability: A Dialogue,’ being Ch 8 in O.A. Otunnu & M.W. Doyle, Peacemaking and Peacekeeping for the New Century Rowman & Littlefield (Maryland USA 1998) p. 197. 26 Less the number of concurring UNSC non-permanent members.

2 Alternatives to Ad Hoc Sovereign Forces

2.1

Introduction

This chapter summarises the historical context from which a corporate alternative eventually evolved. States’ ad hoc deployments emerged in the mid-1950s during a lengthy debate over proposals for military or paramilitary units. These forces were at first intended to address a range of tasks wider than peacekeeping as envisaged in UNEF 1.1 The following section examines early discussions on the matter and the third scrutinises three historically prominent examples: rotating states’ units, standby forces and a permanent volunteer legion. Contract forces are introduced where a UN legion bears occasional comparison. The fourth section canvasses those curiously understated disadvantages accompanying regional peacekeeping in the context of waning Security Council authority. The fifth section explores the varied origins and purposes of a miscellany of modern rapid reaction forces; and the summary reviews the reasons for a generally unsatisfactory situation, but one that is the subject of encouraging claims explored in the following chapter.

2.2

Legions and guard forces: origins and problems

The drafters of the UN Charter were well aware of the League of Nations’ failure to intervene in its pre-war trials: Manchuria in 1931, Ethiopia and Spain in the mid-1930s and the Russo-Finnish conflict of 1939–40. One consequence was the discussion of a permanent and powerful UN military by the Allied powers over 1944–5. Talks collapsed in 1947 over sovereignty issues2 and intractable, ideological enmities.3 In 1948 Secretary-General Trygve Lie responded with a proposal for the 13


creation of a small, non-military ‘Guard’ of between 1000–5000. This was eventually reduced to 800 under delegate pressure,4 of which 500 were to be held in reserve within home states.5 The Guard was to conduct plebiscites, administer truce terms and prospectively function as a constabulary under Security or Trusteeship Council authority. This was to occur if international regimes were established in suitable cities, Lie favouring Jerusalem and Trieste.6 Emplaced with the agreement of sovereign authorities, the Guard was to secure personnel and property in field missions, supervise polling during referenda and provide communications and transport required by UN personnel. The concept was not a success. The Soviets saw it as a scheme aimed against them, while the French objected to its cost and Soviet satellites baulked at its legal bases. Lie retreated and in the alternative proposed a 300 man ‘Field Service’ unit, to be supplemented by an uncertain number of volunteers drawn from a ‘Field Reserve Panel’ to oversee truce and plebiscite functions.7 These were adopted in 1949. Lie’s experience is helpful in understanding the great power rivalries of his day. He wrote frankly in his autobiography of the disinclination amongst UN members to accept the Military Staff Committee function in Article 43 of the Charter.8 With his small Guard force, he wished to ‘by-pass completely’9 differences over Article 43 but he was candid over doubts as to the likelihood of success.10 Leaders of major states duly made it clear where their priorities lay. Modest as [the force] was, to carry it out would have required a degree of attention and imagination on the part of men in charge of the foreign policies of the principal member nations that they seemed unable to give in the years after 1947 to projects for strengthening directly the authority and prestige of the United Nations as an institution.11 In the later ‘Uniting for Peace’ Resolution of 1950, a Collective Measures Committee was created to consider means of strengthening international security. It was to this committee that Lie proposed a UN Legion12 or what was later known as a ‘UN Volunteer Reserve’ of around 50,000 combat troops.13 The Secretary-General thought this would take the form of states’ volunteers under UN control, trained in advance and held in their home states pending mobilisation for UN deployment. However, their governments were to retain ultimate control14 and the response was again discouraging. The plan was not debated seriously in the General Assembly. Nor was a committee set up

Alternatives to Ad Hoc Sovereign Forces 15

to consider it and Schwebel records that Lie did not struggle hard for even a modified version of his idea.15 UN capacity was resuscitated somewhat when the Canadian Lester Pearson and succeeding Secretary-General Hammarskjöld successfully proposed the ‘UN Emergency Force’ to supervise the cease-fire which concluded the Suez debacle of 1956.16 Nonetheless, there were objections to Hammarskjöld’s subsequent 1958 study and his modest request for an indication of willingness to donate troops and logistic support in the future. The Soviets objected to international forces in principle.17 The Africans, Asians and South Americans protested over the costs involved in future stand-by plans.18 Moreover, President Eisenhower unwisely suggested to the General Assembly that a permanent UN force could have substituted for US action in Lebanon earlier in the same year. This understandably alarmed many delegates, with the implication that such a force might be manipulated to serve Superpower aims directly.19 UN member conduct was largely unhelpful towards efforts to create an effective UN legion or guard force over the 1940s and 1950s. Yet in one form or another, guards, security police, volunteer reservists, legions or other dedicated forces have never drifted far from the UN agenda. The fact that they keep appearing is in large part an indication of dissatisfaction with parsimonious responses to requests for well-funded and adequately manned peace operations. The more prominent alternatives to ad hoc forces have until recently been variations on three distinct models.

2.3 Three historically prominent alternatives to ad hoc forces 2.3.1

A permanent force of rotating states’ units

In a permanent force of rotating states’ units, donors are expected to contribute troops to a unit domiciled in a UN base(s) outside home states. Once a quota is met, the force would be trained in peacekeeping techniques of the day and rotated at fixed intervals. This model has not been successful for most of the reasons that explain the collapse of early efforts by Lie and Hammarskjöld. Contingents would be expected to settle a political question on which their donors would probably hold differing or even competing views. As Morgenthau put it, those forces would prove reliable only to the extent that contributing states’ ‘…legal preferences and political sympathies happen[ed] to coincide with the policies of the international organization they are called upon to support’.20 Even a community of sympathies and interests that is


coherent at the beginning of a conflict is likely to unravel as interests inevitably shift. Disintegration would always be likely because as Morgenthau argued, the survival of such a force ‘…depends upon the persistence of the national interests on which it rests’.21 A similar point was made by Paul Nitze: that the required commitment exercised through states’ votes would remain necessarily unreliable, restricting the scenarios to which a UN force could be applied.22 Or as Stanley Hoffman opined, powerful states are not likely to remain united indefinitely in order to impose a permanent UN force upon other, unwilling states.23 It is not difficult to tease out other scenarios in which states’ interests would prove incompatible with attempts to create a permanent force from donor states’ units.24 Take a handful of Hoffman’s observations: states that are powerful are not likely to create an entity that would interfere with their own efforts to shape international politics as they would wish. On the other hand, less powerful states will resist an institution likely to enforce their role as weaker instruments of stronger states. They would object to a force likely to interfere with their own attempts to resolve disputes should they view such efforts as fair by their lights.25 And should a weaker state challenge the status quo for reasons arising from its vital interests, many other states would be likely to find their sympathies or interests engaged on the side opposing the status quo – which an intervention force would probably be ordered to defend.26 Loyalty of troops within states’ units is also likely to be a problem. Would thousands of states’ troops transfer loyalty to an organisation that in turn expects them to carry out orders without question?27 Whether pledged for several years or rotated more frequently, they would still serve two masters. The UN is a sprawling political project full of worthy aims. But these will not necessarily instil allegiance comparable to the depth of a state soldier’s identification with a homeland and nationality. A sceptic might argue that states’ soldiers on UN duty are likely to become conduits for intelligence to their governments. Worse, these governments may instruct their nationals to obstruct, sabotage or manipulate their UN unit in ways that advance home states’ interests. One also wonders how the Security Council might explain itself when an entire national unit is withdrawn because the UN force is to be sent to their state to quell a conflict. The arriving UN troops would find themselves fighting discharged members of the organisation which had until recently trained both sides.


Governments remain unlikely to donate battalions for rotation through an operational UN structure. The intractable problem is that no government will follow through on an undertaking perceived to conflict with evolving national interests. The most generous offer is likely to be a contingent pledge. A state might offer certain forces for a fixed time and perhaps meet part of the costs in the event of a crisis. An implicit condition for rendering assistance is likely to be the emergence of no threat to the donor state’s interests (while the supply of some advantage would be an added persuasion). And, there is little doubt that donor state interests would be interpreted indulgently while the welfare of others would be viewed with corresponding parsimony. 2.3.2

Standby forces

The standby forces model also identifies formations pledged by states. Unlike those rotating forces within the permanent UN unit described above, these troops would stay within home borders until directed to deploy. Sometimes called ‘earmarked’ forces, they would be expected to learn peacekeeping methods during training. This is the reason they rather than other members of their state’s armed forces would be allocated in the event of UN service. The standby concept is well understood by the UN, earmarked forces having been integral to the original United Nations model. The Charter drafters had envisaged a vast army, something conceived during World War II and originally intended to number two million troops.28 It is therefore unsurprising that a similarly structured model for peacekeeping has been suggested from time to time, if in far smaller numbers.29 The problem for supporters is that there has been a similar model in recent memory and it proved unsuccessful. At a desperate point in 1994 Mr Boutros-Ghali sought to expand the UNAMIR force in Rwanda. Of the 19 states then participating in the UN ‘Standby Arrangements System’ (or UNSAS)30 none would agree to contribute military forces at precisely that moment when the need for intervention was most dire.31 In other words, UN member disinclination to contribute has proved strongest where the need has been most urgent. This arrangement was mistakenly believed to be a means of delivering forces on the ground quickly. The UN Military Commander in Rwanda instead discovered that the approval process took months while military advisers in New York liaised with staffers in various donor governments’ agencies.32 Mr Annan has


since acknowledged the merit in General Dallaire’s belief that a single mobile brigade emplaced in theatre within a few weeks of the deaths of the Rwandan and Burundian presidents would have saved hundreds of thousands of lives.33 Unfortunately, standby arrangements failed to supply even part of what the military commander required.34 The Rwandan genocide and accompanying UNSAS fiasco were reasons for Boutros-Ghali’s subsequent if unsuccessful proposal for a UN rapid reaction force.35 The Security Council’s response was described by Professor Siekmann as one of ‘no significant support’.36 This was not much different to the reception Boutros-Ghali received prior to the genocide, when he presented a proposal for rapid deployment standby forces. These he called ‘peace enforcement units’.37 He appeared to believe that states would provide the necessary resources for the later, rapid reaction force,38 but he rejected a permanent military unit as something UN members would be unlikely to accept.39 He was correct. Like most authors, Boutros-Ghali resisted the conceptual step required to identify strengths attached to delivery of troops from a source other than states. This ideological resistance remains strong. Meanwhile, states continue to create and fund armed forces to defend their interests and not those of other parties. In the context of Rwanda, states’ standby forces were highly unlikely to have defended a supranational agenda.40 Nor is there a compelling reason why more recent calls for standby forces are likely to be more successful.41 It is not difficult to see other flaws. Training of standby forces for peacekeeping operations is to be funded by home states. Yet their governments are likely to perceive little benefit in return for the expenditure they would bear. The Nordic states, the Canadians and a few others have favoured such training in the past, although Canadian interest has declined.42 Because states hold few incentives, standards of training would vary, as would inter-operability, maintenance, age and suitability of equipment. But with hindsight none of this matters greatly. In situations of urgency, states have manifestly failed to honour standby arrangements because even limited risks have in practice proved politically unpalatable and penalties for noncompliance are minor and fleeting. 2.3.3

A permanent and volunteer UN legion

The third and somewhat more plausible alternative is the permanent, volunteer legion. A key intention has been to establish a more profes-


sionalised approach than troops in the other models are likely to supply. Volunteers may or may not hold prior military experience, but recruits would staff an endogenously created, trained and equipped unit. Its soldiers would contemplate career paths in a permanent structure, probably for the entirety of their military careers. Moreover, unlike rotated states’ soldiers in a permanent unit or those on standby arrangements, a legion would be to at least some degree less reliant on international consensus. In this aspect the legion bears similarity to a contract force. Likewise, the Security Council would be in a position to direct a formed unit ready for immediate service. Legion troops may or may not have accrued the operational experience that would be one criterion for contractor selection. Even so, after training together for some time a legion would be available for prompt despatch in much the same fashion. In both permanent and contract legions there is little doubt that readiness to deploy in peacekeeping operations would prove important in raising the likelihood of success. That swiftness would be decisive in an international humanitarian intervention. Moreover, because the link between states’ interests and a UN operation would be more indirect, an all-volunteer unit is in some eyes more ethically sound than either states’ troop rotations or states’ earmarked forces.43 Members of a permanent legion could be recruited through either the heterogeneous French Foreign Legion model or an ethnically less diverse Gurkha approach, as suggested by Stephen Kinloch.44 There is some evidence that the latter choice diminishes problems with recruitment, training, culture and discipline.45 A permanent volunteer legion should undermine states’ resistance to UN command over their nationals and covert instructions or orders inimical to mandate goals. Variable standards of training and poor equipment evident in particular states’ units should be matters of the past. Several UN commanders have also suggested that integration of individuals through training, doctrine and equipment creates greater effectiveness and less animosity within their units than has been their experience with mixing different national units together.46 A legion could also reject troops from states whose cultural, religious, political or other intolerances are likely to prove provocative to other troops or civilians. A permanent, volunteer unit enjoys one other advantage when compared with either rotated or earmarked states’ forces, something described succinctly by Kaysen and Rathjens: ‘…the greater likelihood that a volunteer force would be employable in peace enforcement actions involving significant risks of casualties’.47


A capacity to absorb casualties and those advantages in the paragraph above would also apply to contractors. However, on the question of casualties a contract force would again be more attractive than a legion because its members would be another step removed from the UN Organisation. When a handful of UN employees are killed or injured, their home states and the Security Council sometimes withdraw. This was the case when the UN Headquarters in Iraq was largely destroyed in August 2003 due to poor security. Twenty-two staff died, resulting in a prompt decision to pull out most other UN employees.48 The point is that the value of human life in international affairs is a political matter. Management of disruption caused by unexpected losses could be dealt with more expeditiously when counting contract casualties rather than in-house losses. Consider an existing analogy. In Iraq and Afghanistan today the deaths of Western service personnel are sensitive matters. Nevertheless, to establish how many security contractors of mixed nationality have been maimed or killed is quite difficult.49 To the US led invasion force, contractor lives are politically less important than those of their own troops. And because the war in Iraq has been unpopular in America for some time, the US government holds a keen political interest in obscuring truths that undermine its objectives. Hence the limited figures it releases.50 A volunteer legion attracts its share of critics. S.J. Stedman doubts Security Council predictability in responding with collective agreement to the necessity for deployment of armed force.51 But there are often problems of collective agreement applying to a Chapter VII decision involving force. It is also difficult to see how a legion could undermine rather than support the legitimacy of UN conflict resolution, as J.G. Ruggie suggests.52 Alex Morrison provides a more coherent list of criticisms. He queries a legion’s racial and geographic balance; the creation of an organisational philosophy more identifiable with the UN than any one state; national, religious, cultural and ethnic preferences within the legion; whether command would be awarded on merit or rotated for political reasons; physical location and attendant issues of local economy and population; discipline, punishment and terms of employment; whether the legion would be responsible to the Military Staff Committee, the Secretary-General or the Security Council; and last, whether some states would press their soldiers into volunteering in order to draw hard currency back home.53 Some of these issues may be dealt with by sensitive management. Regardless, it is difficult to see how states’ purposes would not intrude into these practical considerations Morrison quite reasonably identifies. More funda-


mentally, the sense of purpose required to create a military organisation has been found wanting for many years in both the UN Organisation, the membership and the Security Council. Proponents of permanent voluntary forces have sometimes been less than clear on the role of legitimised violence when dealing with human rights abuses.54 Sir Brian Urquhart created a plan for a volunteer force intended to deploy quickly and act decisively to subdue violent intrastate parties. He can certainly call on lengthy and distinguished experience in support of this suggestion.55 His 1991 proposal described a force that could take combat risks56 but puzzlingly, was not to hold military objectives.57 He delivered similar views in 199558 and 1998.59 Not surprisingly, these apparently inconsistent opinions were criticised by others.60 To his credit, when interviewed by the author Sir Brian candidly acknowledged his error.61 The lesson to be drawn would seem to be that the range of purposes envisioned for a volunteer legion – or any UN force for that matter – requires considerable clarity, particularly where violence is likely. Another aspect arises from proposals for any UN force, be it rotating or standby sovereign forces, a dedicated legion or a contract company. Mindful of General Dallaire’s remarks on the reinforced brigade he required in Rwanda,62 there will be a minimum size necessary to exert politically effective militarily action over sub-state actors or delinquent government in small states. Any UN force might prove too small should it encounter resistance from an unexpectedly numerous adversary. In the context of the former Yugoslavia, one could speculate that Urquhart’s volunteer legion may have done some good. There seemed to be a correlation between the degree of military force UNPROFOR projected and how seriously local political and military leaders viewed the UN presence.63 Urquhart was in no doubt over the effect a UN legion would have created in Bosnia.64 Ex-US Army officer John Hillen is not of this view.65 He suggested that Urquhart’s brigade would have been too small to carry decisive influence at the early stage envisaged;66 and could have been hampered by an inadequate mandate as a consequence of Security Council disunity.67 Mandate formation is always politically delicate but Hillen’s former point requires some reflection. Several quite small states are capable of deploying forces which could overwhelm a UN legion of brigade size. Haynes and Stanley emphasise that although a UN legion should be able to undertake armed intervention, it may require conventional forces to back it up and provide logistic support.68 This is something Urquhart was quick to acknowledge.69 Without


timely augmentation by larger conventional forces, both a UN legion and a private contractor could face unexpected withdrawal.70 This is something to be considered by both the Security Council and its more violent antagonists of the future.

2.4 Regional peacekeeping and the declining power of the UNSC On first inspection Chapter VIII71 of the Charter appears to provide an institutional framework drafted to strengthen member co-operation. Rikhye suggests that the evolution of the UN has encouraged regionalism,72 in which case attempts at localised solutions to regional problems initially appear collectively beneficial. It is not difficult to place Rikhye’s observation in Charter terms because a regional system designed to strengthen co-operation amongst states might in theory exist in harmony with Security Council prerogatives. There have been many non-UN operations carried out by nearly a dozen regional organisations: CIS, CEMAC, ECOWAS, the EU/EC, IGAD, NATO, OSCE, OAU and its successor the AU, OAS and SADC.73 In the wake of the Cold War and a persistent absence of sufficiently numerous and adequately funded peacekeepers, it may seem reasonable for the UN to endorse (or at least, not resist) a range of substitutes. Unfortunately, regional agencies have not proved a reliable alternative to ad hoc operations led by the UN. Some deployments have instead supplied gnawing evidence of a fundamental and perhaps irreconcilable problem: whether a military pact amongst a few states can really be turned to purposes consistent with an organisation founded on principles of global applicability. One is mindful that the major military alliances of the twentieth century proved subversive to the Charter ideal of collective security. Chapter VIII purposes were similarly distorted by Cold War bipolarity. Wherever they exist, today’s regional alliances support common interests and oppose competing interests. They sit uneasily with a more inclusive and universal agenda. It is true that regional entities sometimes identify external threats to their own kind and this may be constructive in some contexts. Diehl writes that the Africans tend to identify neocolonialism and the Arabs are wary of Zionists.74 This is a small point. A more important one is that larger regional states tend to manipulate their organisations in ways that reflect parochial,


exclusionary or authoritarian identity. Wulf records that Zimbabwe’s decision to intervene in the DRC in 1998 and President Mugabe’s defence of this action were taken in the name of the Southern African Develop-ment Community. Yet the basis on which this action was conducted was at odds with SADC process.75 Mugabe’s military purposes in the DRC were notoriously geared to plunder and elite enrich-ment, carrying undesirable consequences for SADC authority and legitimacy. Because regional agencies and the UN tend to hold differing purposes, there has not been an orderly division of labour between them. It is not difficult to see why. How would a regional coalition planning a deployment serve its interests by disclosing its more selfish motives to other states – let alone the Security Council or General Assembly? On past evidence regional members are hardly likely to prove disinterested in the consequences of the risks they are prepared to take. Their forces may mouth the language of common interest and international law. At the same time they are likely to pursue selfish ambitions. It is difficult to consider strong power intervention in weak states without suspicion of neo-colonial attempts at sustaining influence. Nor are members of a regional organisation likely to view human rights abuses they inflict as being wholly distinct from their more strategically or financially rewarding purposes. In that context regional proximity can readily sustain hostile competition, as ECOWAS demonstrated in Liberia. A related problem is the ambiguity between regional arrangements established for mutual defence consistent with Article 51 and regional treaties established for less precise purposes, like meeting aggression within and amongst members.76 Another difficulty is that other than NATO, regional organisations seldom enjoy the budgets, skills and military equipment required to train soldiers to adequate standards in sizeable numbers; then deploy and sustain them for lengthy periods. Michael Barnett has emphasised that regional organisations and the UN tend to seek resources from one another whilst minimising encroachments upon one another’s autonomy.77 Even so, devolving responsibilities to regional organisations retains the considerable attraction of costing affluent UN members less money and resources than ad hoc forcesto which they are contributors. Berman and Sams stress that the Permanent Five in particular have embraced Chapter VIII participation in order to lend


respectability to their aim of retaining Permanent Five money and their citizens’ lives.78 Former Secretary-General Boutros-Ghali supported Chapter VIII operations for another reason – something he eagerly hailed as ‘democratising the international system’.79 Boutros-Ghali’s remark unhelpfully confuses the nature of Chapter VIII and Security Council authority. The nub of the matter is that regional organisations require a delegation of powers from the Security Council for peacekeeping or enforcement action within non-consenting states.80 Should the Council provide this delegation its own unreliable military authority implies resolving an uneasy tension with those collective entities which actually possess sufficient military capability. The origin of this friction lies in the strained history of the relationship, something that emerged during the UN enforcement action in Korea. Prior to Chinese intervention the USA and its allies had pushed far into the North. This promoted a US strategy carrying an unilateral interpretation of the relevant UN mandate.81 As US interests diverged from UN goals, the exercise of restraint on a Superpower proved beyond the capacities of the post-war order. The 2003 invasion of Iraq again proved that the UNSC could not exert authority over powerful Council members holding purposes inconsistent with the Charter. Perhaps surprisingly, regional organisations which have acted beyond their Charter authority in the use of force appear to have retained much of their legitimacy, despite some contentious conduct. To this end regional agencies have benefited from limited public opprobrium and lethargy by the major powers in defending their Security Council primacy.82 It is difficult to see how the Security Council might attempt to reassert its prerogatives in the use of force without affirming greater authority over regional arrangements that already exist and the authority some have asserted. An inevitable question is how the UNSC might respond when regional coalitions fail to act as required by the Charter and/or a mandate (if one exists.) Michael Hirsh suggests that the world – and by implication the UNSC – should tolerate their self-interest, incompetence and corruption so long as they displace worse regimes.83 This is a common view as judged by collective acquiescence over time. It is also disappointing because of an implicit indifference to international customary law, elements of the Charter, and various international treaties concerned with an assortment of matters extending from trade to international criminal law. Most embody fundamentally important norms, some of which peacekeeping ostensibly seeks to


promote. However, his conviction invites a serious query. Is the Security Council able to restrain those regional organisations to which it may or may not have delegated powers, given the vigour exercised by regional, ethnic and irredentist politics since the end of the Cold War? NATO operations in the former Yugoslavia and ECOWAS actions in Liberia are two examples of regional intervention. Both demonstrate how regional organisations choose to engage in military operations without delegated powers from the Security Council. In the 1990s NATO confronted a Yugoslav challenge to European stability that could have widened into a conflict involving Albania and Greece and subjected south-west Europe to de-stabilising refugee flows. Part of the NATO response was 78 days’ bombing of Kosovo in the absence of Security Council authority. There has been much debate over the legal and other significance of this action. But it seems clear that of the three major resolutions adopted by the Security Council prior to the Kosovo bombings, none legitimised the campaign;84 nor could a fourth issued once the bombing had begun and a fifth once it had concluded.85 Future historians may view NATO’s actions as an early step on a return to pre-Charter days where unilateral or collective recourse to military force was less inhibited.86 Michael McGwire viewed the bombing of Belgrade to the north as a deliberate manifestation of a US push for NATO to take enforcement action without UN authority.87 Perhaps this was so. Soon after the campaign, US Deputy Secretary of State Strobe Talbott stated that NATO had to retain the freedom to act where a consensus of its members thought it necessary.88 He was unequivocal on the importance of resistance to ‘subordinat[ing] NATO to any other international body’.89 Moreover, NATO’s purposes have been explicitly global for several years90 and since the end of the Cold War the alliance has executed other ‘nonArticle 5 missions’ in response to something other than an armed attack against a member.91 NATO carries attractive virtues that a UN ad hoc force does not: over half a century of training together by member states; a unified command, control and communications system; a basis in several wealthy economies; advanced equipment; a growing membership; and the most formidable capacity of any alliance to project power in major operations.92 Whatever the merits or demerits of NATO’s case for operations in the former Yugoslavia (and there is a robust argument in support of these) the alliance poses a potent risk to the Security Council. Yesterday’s stabilising alliance may become tomorrow’s ambitious subversive.93


The second example concerns the absence of authority supplied by the Security Council for forcible measures taken in Liberia by ECOWAS in the absence of consent from the Liberian state.94 The UN Security Council did not criticise ECOWAS for its conduct in Liberia in the early 1990s but instead ‘…commend[ed] the efforts of ECOWAS to work towards a lasting peaceful solution…’.95 Yet ECOWAS proved to be a party to the conflict. As NATO states held their own agenda in the Balkans, so Nigeria – the most powerful state in its West African region – wished to put down the Liberian rebellion for reasons of self-interest.96 ECOMOG forces were apparently notable for their widespread atrocities97 and collaboration with competing indigenous factions98 in order to secure corrupt enrichment.99 Underpaid and even ill fed, it seems ECOMOG troops pillaged locations where they were deployed.100 According to Gershoni and Cain, the force and its Nigerian component in particular quickly became notorious for systematic looting, drug trafficking, theft of diamonds and timber, prostitution rackets, rape and harassment of civilians.101 These matters did not appear to distress the Nigerian government, which seemed to value troops’ loyalty to the regime more highly than disciplined conduct.102 However, this was not unexpected in a military force Singer described as ‘debilitated by years of corruption’ and which had carried out little or no active training.103 Ironically, the ECOWAS mandate included the creation of fair elections. These would have been an unsettling novelty to the occupiers, as the governments of Nigeria and several other donors were then dictatorships.104 Two years later in 1994, a UN observer team arrived. The UNOMIL mission eventually scaled down in the face of intensified fighting105 and ECOMOG objections to UNOMIL’s attempts to observe its arms trafficking and human rights abuses.106 If buttressing regional stability was the purported aim of ECOMOG’s six year intervention, Herbert Howe suggests that the results were otherwise: prolongation of the conflict, toppling of the Gambian government and greater refugee flows out of Liberia.107 Subsequent attempts to avoid resource wars in Africa have given rise to intergovernmental, UN and civil society talk of an ECOWAS protocol to control exploitation of trans-boundary natural resources in Africa.108 The idea has not yet found acceptance. The UN Secretariat and Security Council are of course less than ideal instruments. Nor are they free of embarrassment caused by a notorious string of sordid and criminal enterprises hatched amongst various peacekeeping deployments.109 Notwithstanding the entrenched pri-


vilege of the P5 and shortcomings in Secretariat administration, the Charter embodies an attempt to represent a wide constituency through an unique structure, processes and roles. In contrast, regional coalitions tend to represent member interests to the exclusion of outsiders. They promote their own concerns, whereas Charter purposes prescribe global objectives, most clearly in the general proscription on the use of force. Some regional organisations will not adhere to such obligations when the costs of acting without delegated authority from the Security Council are attractively slight or non-existent.110 This may be so where a NATO strategic imperative does not find supporting votes in the Security Council. It may also occur through the politics of African resource exploitation.

2.5

A miscellany of other alternatives to ad hoc forces

Since Hammarskjöld’s time there have been many attempts to create alternatives to ad hoc forces fashioned on the UNEF I model.111 Several have been described in considerable detail.112 Others were mooted well before the creation of the UN. An early twentieth century proposal for a multilateral military force was presented by the French delegation to the League of Nations Commission at the Paris Peace Conference of 1919.113 Although unsuccessful, the French effort was an example of interest in permanent multilateral forces intended to supply international stability well before World War II. The persistent view that these military units would be an internationally constructive development has seen repeated proposals for military or police forces bearing international obligations and legitimacy.114 The high-water mark for more contemporary plans coincided with a wave of optimism during the early 1990s.115 Since shortcomings evident in the Balkans intervention in particular,116 rapid reaction plans have been characterised by three features: diverse origins; varied and sometimes ambiguous purposes; and a declining sense of obligation to the UN Security Council. Plans have included an expansion of the American program which trains African forces, formerly known as the ‘African Crisis Response Initiative’ and now called the ‘African Contingency Operations Training and Assistance program’;117 a perhaps surprising suggestion by past US Defence Secretary Rumsfeld that the US train and lead its own multilateral force of around 10,000 – apparently without reference to UN authority.118 UK Prime Minister Tony Blair proposed a 15,000 member European intervention force to deal with African crises;119 while an African Union standby force of 15,000 was also intended to


address African problems;120 and a sub-regional force of 6500 was to be set up by ECOWAS to meet more localised goals.121 Another scheme was aired by the ‘Association of South-East Asian Nations’ for somewhat nebulous ASEAN purposes;122 the Blackwater deployment discussed in the Introduction;123 and assorted media and lobbyist recommendations for police and intervention forces of less certain plausibility.124 Closer to the UN fold Urquhart and Childers in the 1990s put forward a revised concept of ‘UN Humanitarian Security Police’ to escort and defend UN and NGO workers, their provisions and transport during humanitarian emergencies.125 These tasks would require the possession of armoured vehicles and the ability to function without the presence of UN military forces.126 In evaluating these proposals, one is struck by a spectrum of plausibility that extends from the doubtful to the more or less credible. This span elicits some caution. For even if some models might appear desirable and perhaps possible as distinct from well-intentioned wishful thinking, an essential if repetitious query remains unaddressed: why has there been such ossifying restraint in expediting the creation and deployment of at least some of these forces? Suffering and human rights abuses have been more or less continuously urgent. And calls for something to be done have been as regular as succeeding and predictably fruitless proposals. For example, the 2005 World Summit ‘Outcome Document’ referred to a necessity to develop ‘rapidly deployable capacities’ to assist peacekeeping operations in ‘crisis’.127 But this (or something like it) has not happened. It seems the answer lies in an enduring misunderstanding of the limits to risk-taking by states’ governments in the interests of others. Leaders of better resourced states tend to prefer sympathetic posturing in the face of disaster while their intelligence agencies inform those same leaders of serious human rights abuses quite literally as they occur.128 Many of these politicians command well-equipped armies. Very few will risk their citizens or tax revenue in the suppression of gross abuses via rapid reaction forces – even (or perhaps especially) in the service of explicit treaty and customary obligations to prevent genocide.129 These matters instead tend to be met with obfuscation,130 a proficiency in which is not limited to leaders of powerful states. Allegations of calculated misconduct have also been levelled against the UN Secretariat and Mr Annan in particular,131 while the present Secretary-General pointedly avoids judgements over past UN inaction during the Rwandan genocide.132


2.6

Summary

In the absence of well-resourced peacekeeping on an ad hoc basis, states, IGOs and others exercise sporadic but continuing interest in rapid reaction forces, guards, security police, volunteer reserves, standby and rotating troop formations and various modern legions. Nearly all have been lost to contradictions inherent in their origins and the realities of state purposes in the international system. Governments today remain disinclined to subordinate their interests to an agenda determined by a supra-state body where violence is likely and on balance, their own interests are insufficiently served by risking participation in that violence. Even where governments agree to donate troops and equipment, they will not willingly provide these resources without a web of hindering qualifications. Alex Morrison put it simply: for many states, national interest and national control remain synonymous.133 None of this bodes well for future UN operations carried out by conventional ad hoc deployments. Yet demands rise for more and better equipment, more advanced military skills and larger numbers of personnel. The moment may be ripe to consider a case for today’s private military contractor. Notes 1

2 3

4

The eight bases for 1st generation peacekeeping were explained in Hammarskjöld’s 1958 ‘Summary Study’. See United Nations, Summary Study of the Experience Derived from the Establishment and Operation of the Force: Report of the Secretary-General (9 Oct. 1958) UN Doc. A/3943. viewed on 9 Jan. 2005 at . N. MacQueen, The United Nations Since 1945: Peacekeeping and the Cold War Addison Wesley Longman (UK 1999) p. 10. L. Goodrich, ‘Efforts to Establish an International Police Force Down to 1950’, Appendix V in W.R. Frye, A United Nations Peace Force Carnegie Endowment/Stevens & Sons (London 1957). In 1944–5 it was widely if briefly believed that collective security could be effectively institutionalised. Through Article 43, a military staff committee composed of members of the Permanent Five was to plan deployment of armed units at the Security Council’s command. This was to have been no token force. The US suggested it contribute 20 divisions or somewhere over 300,000 troops. The Soviets envisaged smaller forces. See Frye, A United Nations… p. 54. Frye, A United Nations…p. 62; also Annual Report of the Secretary-General on the Work of the Organization (1 July 1947–30 June 1948) UN Doc. A/565 pp. xvii–xviii cited at note 2 of S.M. Schwebel, ‘A United Nations “Guard” and a United Nations “Legion”’, being Appendix VI in Frye, A United Nations… at p. 195. Also D.J. Whittaker, United Nations in Action UCL Press (London 1995) p. 30.

30 Privatising Peace 5 6

7 8 9 10 11 12 13 14 15 16

17

18 19 20

21 22

23

24

25 26 27 28 29

Schwebel, ‘A United Nations Guard…’ p. 196. Frye, A United Nations… pp. 62–3. On the constitutional authority for Lie’s proposal for a guard force, see Schwebel, ‘A United Nations “Guard”…’ at p. 197. Schwebel, ‘A United Nations “Guard”…’ pp. 202–3. T. Lie, In the Cause of Peace Macmillan (1954) p. 98. Lie, In the Cause… p. 98. Lie, In the Cause… p. 98. Lie, In the Cause… p. 99 See generally Schwebel, ‘A United Nations “Guard”…’ pp. 208–16. Frye, A United Nations… p. 63. Schwebel, ‘A United Nations “Guard”…’ p. 211. Schwebel, ‘A United Nations “Guard”…’ p. 212. This was quite different from the earlier observer missions: UNTSO in the Middle East and UNMOGIP in Kashmir which had been more limited in their functions. E. Johnson, ‘A Permanent UN Force: British Thinking after Suez’, Review of International Studies Vol. 17 (1991) p. 264. Johnson also identified the UK’s ambivalence regarding the success of both UNEF and Hammarskjöld’s 1958 study on peacekeeping. See pp. 251–66. Johnson, ‘A Permanent…’ p. 264. Johnson, ‘A Permanent…’ p. 264. H.J. Morgenthau, ‘The Political Conditions for an International Police Force’, International Organization Vol. 17 No. 2 – ‘International Force: A Symposium’ (Spring 1963) p. 400. Morgenthau, ‘The Political Conditions…’ p. 401. P.H. Nitze, ‘Where and Under What Circumstances Might a United Nations Police Force Be Useful in the Future?’ being Appendix 1 in Frye, A United Nations… at pp. 119–20. S. Hoffman, ‘Erewhon or Lilliput? A Critical View of the Problem’, International Organization Vol. 17 No. 2 – International Force: A Symposium (Spring 1963) p. 419. For a rumination on related issues see T.C. Schelling, ‘Strategic Problems of an International Armed Force’, International Organization Vol. 17 No. 2 – International Force: A Symposium (Spring 1963) pp. 465–85. Hoffman, ‘Erewhon or…’ Eg, the continually shifting context of states’ use of arms at p. 405; the compatibility of a UN force with the structure of the international system and the tensions within it at p. 406; the practical nature of missions envisaged and their adversarial or consent-based contexts at p. 407; delicate questions regarding the specific functions a force would have in different conflicts types, be they international or national at pp. 408–9; the financial aspect at p. 410; force size and composition at p. 410; and the nature of command at pp. 411–12. Hoffman, ‘Erewhon or…’ pp. 418–19. Morgenthau, ‘The Political…’ p. 400. Morgenthau, ‘The Political…’ p. 399. A. Morrison, ‘The Fiction of a Standing UN Army’, Fletcher Forum on World Affairs Vol. 18 No. 83 (1994) pp. 87–9. J.M. Boyd, United Nations and Peace-Keeping Operations: A Military and Political Appraisal Praeger Pub (New York 1971) p. 224.

Alternatives to Ad Hoc Sovereign Forces 31 30

31

32

33

34

35 36

37

38 39 40

41

42

43 44

45

These have been in use since 1993. A concise description of them may be found at Pippard, T. & V. Lie, Enhancing the Rapid Reaction Capability of the United Nations: Exploring the Options United Nations Association of Great Britain and Northern Ireland viewed on 27 April 2005 at pp. 2–3. 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. These are likely to include officials in foreign affairs and defence, plans, intelligence, logistics and finance. See R Dallaire, ‘Military Aspects’, being ch. 6 in D.A. Leurdijk (ed.), A UN Rapid Deployment Brigade: Strengthening the Capacity for Quick Response Netherlands Institute of International Relations (Netherlands: Clingendael, The Hague 1995) at p. 47. K.A. Annan, ‘Challenges of the New Peacekeeping’, being ch. 7 in O.A. Otunnu & M.W. Doyle, Peacemaking and Peacekeeping for the New Century Rowman & Littlefield Pub (Maryland 1998) p. 174. Progress on standby arrangements remains limited. For a discussion of this, Article 43 agreements & enforcement agreements see A. Roberts, ‘Proposals for Standing Forces: History, Tasks and Obstacles’, being ch. 5 in Leurdijk (ed), A UN Rapid Deployment… at pp. 34–5. Boutros-Ghali, Supplement to… para. 44. R. Siekmann, ‘Political and Legal Aspects of a Directly Recruited Permanent UN Force’, International Peacekeeping Vol. 2 No. 4 (June–July 1995) p. 92. B. Boutros-Ghali, An Agenda For Peace UN Doc A/47/277–S24111 (17 June 1992) (Report of the Secretary-General pursuant to the statement adopted by the Summit Meeting of the Security Council on 31 January 1992) viewed on 11 May 2005 at at para. 44. The idea was received favourably in some US circles. See K. Adelman, ‘Breathing New Life Into the UN’, Washington Times (1 July 1992). Boutros-Ghali, Supplement to… para. 44. UN Press Release SG/SM/5518/Sec-Gen B Boutros-Ghali (5 Jan. 1995) at p. 5. S.R. Fell, Preventing Genocide: How the Early Use of Force Might Have Succeeded in Rwanda Carnegie Commission on Preventing Deadly Conflict (New York 1998) p. 15. L. Feinstein, ‘Beyond Words: Building Will and Capacity to Prevent More Darfurs’, Washington Post (26 Jan. 2007) viewed on 29 Jan. 2007 at . D. Pugliese, ‘Canada All But Dropped UN Peacekeeping Role’, Montreal Gazette/CanWest News Service (24 Oct. 2004) viewed on 24 Oct. 2004 at . J.R. Gerlach: ‘A UN Army for the New World Order?’, Orbis Vol. 37 No. 2 (Spring 1993) p. 227. Note that UK units have British officers. See S.P. Kinloch, ‘Utopian or Pragmatic? A UN Permanent Military Volunteer Force’, International Peacekeeping Vol. 3 No. 4 (1996) p. 172. F. Saemark-Thomsen, ‘Military Aspects to a UN Rapid Deployment Brigade’, being ch 7 in Leurdijk (ed.), A UN Rapid… at p. 56.

32 Privatising Peace 46 47 48 49

50

51 52

53 54

55 56 57

58

J.M. Lee, R. von Pagenhardt & T.W. Stanley, To Unite Our Strength Uni. Press of America (New York 1992) pp. 46–7. C. Kaysen & G.W. Rathjens, ‘Send in the Troops: A UN Foreign Legion’, The Washington Quarterly Vol. 20 No. 1 (Winter 1997) p. 210. BBC News, ‘Regret at UN’s Iraq Retreat’ (26 Sept. 2003) viewed on 2 Jan 2007 at . There are some sources like the ‘Iraq Coalition Casualty Count’ which include contractor figures. These are almost certainly incomplete. See viewed 7 Aug. 2005. Also K. Whitelaw, ‘National Security Watch: The Hidden Casualties in Iraq’ (8 Aug. 2005) viewed on 9 Aug. 2005 at . One may track insurance claims published through the US Dept of Labor pursuant to the Defense Base Act. But DBA only applies to US & other citizens accompanying US military forces. See A. Fernandez – Morera, ‘Civilian Contractors: Invisible Casualties of Iraq’, Scripps Howard News Service (23 Feb. 2006) viewed on 24 Feb. 2006 at . S.J. Stedman, ‘A Volunteer UN Army? The Case Against’, International Herald Tribune (29 July 1993) p. 7. J.G. Ruggie, ‘No, the World Does Not Need a United Nations Army’, International Herald Tribune (26–27 Sept. 1992) at p. 4 cited in Kinloch, ‘Utopian or…’ at p. 174 note 45. Elsewhere, Ruggie grasps some of the problems of a volunteer force, but provides no means to overcome old obstacles. See J.G. Ruggie, ‘Wandering in the Void: Charting the UN’s New Strategic Role’, Foreign Affairs New York Vol. 72 Iss. 5 (Nov./Dec. 1993) at pp. 26–7. For each of these see Morrison, ‘The Fiction of a Standing…’ p. 95. Eg, R.C. Johansen, A United Nations Emergency Peace Service. To Prevent Genocide and Crimes Against Humanity (Working Group for a United Nations Emergency Peace Service) viewed on 29 June 2006 at <www. wagingpeace.org/articles/2005/03/00_uneps.pdf>. Urquhart served 41 years at the UN, from recruitment in 1945 to retirement as Under-Secretary-General in 1986. B. Urquhart, ‘Who Can Stop Civil Wars?’, The New York Times (29 Dec. 1991) Section 4 p. 9. Urquhart, ‘Who Can Stop…’ p. 9. He enlarged upon this force two years later, partly in reaction to UN and NATO mistakes over Serbian aggression. See B Urquhart, ‘For A UN Volunteer Military Force’, New York Review of Books (June 10 1993); and B Urquhart, ‘Keeping the Peace: The Argument for a United Nations Volunteer Military Force’, Social Education (Nov./Dec. 1994). Qualified praise for the idea was provided by Robert Oakley, a former US Special Envoy to Somalia; and more enthusiastic support from Anthony Parsons, a former British Ambassador to the UN. See ‘A UN Volunteer Force – The Prospects’, in New York Review of Books (July 15 1993) at pp. 52–3 & 56 respectively. B. Urquhart, ‘Prospects for a UN Rapid Response Capability’, being ch. 3 in Cox & Legault, UN Rapid Reaction Capabilities… Nor was the legion to take sides in a civil war. See pp. 33–4.


60 61 62 63

64 65

66 67 68

69 70

71 72 73 74 75 76 77 78 79 80

81

B. Urquhart & F Heisbourg, ‘Prospects for a Rapid Response Capability: A Dialogue’, being ch. 8 in Otunnu & Doyle, Peacemaking and Peacekeeping for the New…’ at pp. 193–4. This was something not lost upon Heisbourg. See Urquhart & Heisbourg, ‘Prospects for…’ pp. 196–7. Recorded interview with author in New York City on 23 March 2006. See Introduction Supra note 25. P. Moon, ‘Peacekeeping Versus Humanitarianism’, New Zealand International Review Vol. 22 No. 5 (Sept.–Oct. 1997) at p. 13. Resolution 764 enabled UNPROFOR protection of UNHCR airlifts into and out of Sarajevo. Resolution 771 extended UNPROFOR’s mandate to provide protection and support for UNHCR land convoys. See p. 15. Urquhart, ‘For a UN Volunteer…’ p. 3; see also Urquhart, ‘Keeping the Peace…’ at pp. 410–11. J.F. Hillen III, ‘Policing the New World Order: The Operational Utility of a Permanent UN Army’, Strategic Review Vol XXII No. 2 (Spring 1994) pp. 60 & 62. Urquhart described a 5000 man force in 1993. See Urquhart, ‘For a UN Volunteer…’ p. 4. Hillen, ‘Policing the New…’ pp. 60–1. L. Haynes & T.W. Stanley, ‘To Create a United Nations Fire Brigade’, Comparative Strategy Vol. 14 No 1. (1995) p. 19; Kaysen & Rathjens, ‘Send in…’ pp. 213 & 208. Urquhart, ‘For a UN Volunteer…’ p. 3. The contractor advantage would be extraction with fewer political encumbrances than withdrawal involving an at least indirect loss of face by governments. ‘Regional Arrangements’, Arts. 52–4. I.J. Rikhye, The Theory and Practice of Peacekeeping Hurst & Co/Int’l Peace Academy (London 1984) p. 131. For a compilation to 2004 see A.J. Bellamy, P. Williams & S. Griffin, Understanding Peacekeeping Polity Press (Cambridge 2004) at ch. II pp. 215–16. Diehl, P.F., International Peacekeeping Johns Hopkins Press (Baltimore 1993) p. 123. H. Wulf, Internationalizing and Privatizing War and Peace Palgrave Macmillan (Hampshire & New York 2005) p. 92. That is, inter se pursuant to Articles 52 and 53. See D.W. Bowett, United Nations Forces Stevens & Sons (London 1964) p. 306. M. Barrett, ‘Partners in Peace? The UN, Regional Organizations and PeaceKeeping’, Review of International Studies Vol. 21 (1995) p. 432. E.G. Berman & K.E. Sams, Peacekeeping In Africa: Capabilities and Culpabilities UN Institute for Disarmament Research (Geneva 2000) p. 40. The Blue Helmets: a Review of Peacekeeping Operations 3rd ed. UN Dept. of Public Information (1996) p. 8. This is consistent with the general prohibition on the use of force. See D. Sarooshi, The United Nations and the Development of Collective Security Clarendon Press (Oxford 1999) p. 249. See generally pp. 248–53. The argument is raised in H. McCoubrey & N.D. White, The Blue Helmets: Legal Regulation of United Nations Military Operations (Dartmouth 1996)


82

83 84

85

86 87 88

89 90

91 92

93

p. 16. See also the relevant UNSC Res 83 of 27 June 1950. See T.H. Yoo, The Korean War and the United Nations (Louvain 1964) for a commentary on the Resolution and its consequences at pp. 33–42 and US unilateralism at pp. 42–9. Some diplomacy and political decisions are described in GyeDong Kim, Foreign Intervention in Korea Dartmouth (Vermont 1993) pp. 220–38. Fund for Peace, ‘Fund for Peace Urges Strengthening of New Generation of Peacekeepers’ Press Release (Wash. DC 20 Jan. 2006) viewed on 21 Jan. 2006 at . M. Hirsh, ‘Calling All Regio-Cops’, Foreign Affairs Vol. 79 No. 2 (2000) p. 7. UNSC. Res. 1160 of 31 March 1998; UNSC. Res. 1199 of 23 September 1998; and UNSC. Res. 1203 of 24 October 1998. See J. Mertus, ‘The Imprint of Kosovo on the Law of Humanitarian Intervention’, ILSA J of Int’l and Comp Law Vol. 6 No. 2 (Spring 2000) at pp. 530–2. Mertus, ‘The Imprint…’ p. 532 SC. Res. 1239 adopted 14 May 1999 neither supported nor condemned the air strikes; and SC. Res. 1244 adopted 10 June 1999 decided on the deployment of a security presence under UN auspices. Mertus observes that it was ‘wholly prospective’ with no comment on the preceding NATO air strikes. There was no ex post approval of NATO’s action. T.M. Franck, Editorial Comments, American Journal of International Law Vol. 93 (1999) p. 859. M. McGwire, ‘Why Did We Bomb Belgrade?’, International Affairs Vol. 76 No. 1 (2000) pp. 9 & 14. The US Deputy Secretary of State was quoted in B. Simma, ‘NATO, the UN and the Use of Force: Legal Aspects’, European Journal of International Law Vol. 10 No. 1 (1999) p. 15. Talbot quoted in Simma, ‘NATO, the UN and…’ p. 15. It is revealing that NATO members which are also EU members were party to an European Security Strategy which in 2003 identified regional conflicts as distant as Kashmir, the Great Lakes and the Korean Peninsula as ‘…impact[ing] on European interests directly and indirectly…’. See EU, A Secure Europe in a Better World (European Security Strategy) (Brussels 12 Dec. 2003) p. 4 viewed on 24 June 2006 at . See D.S. Yost, ‘The New NATO and Collective Security’, Survival Vol. 40 No. 2 (Summer 1998) p. 142. For example, through IFOR, SFOR, KFOR and ISAF. When the S.C. delegates ch. VII powers to enforce ‘safe areas, ‘no fly zones’ or naval interdictions, it does not delegate them to NATO, but to relevant states with a provision to exercise these powers through regional arrangements. See Sarooshi, The United Nations and… p. 253. Although NATO’s conduct is prescribed by its treaty, the obligations of the Parties do not limit the inherent powers of sovereign members. One issue in the former Yugoslavia was the nature of external accountability of member states to the UN. See H. McCoubrey & J. Morris, Regional Peacekeeping in the Post-Cold War Era Kluwer Law (The Hague, Netherlands 2000) p. 217.


95

96

97

98 99 100 101

102 103 104 105 106 107

108

SC Res 788 of 19 Nov. 1992 does not purport to exonerate ECOWAS’s breaches of international law (something in any case uncertain in terms of Security Council powers.) Contra: Wedgwood suggests that ECOWAS intervention in Liberia was ‘ratified’ by the SC after it had begun, apparently in reference to SC. Res. 788. See R. Wedgwood, ‘Unilateral Action in the UN System’, 11 EJIL (351) viewed on Lexis-Nexis 17 Nov. 2004 p. 5; see also her note 32; and SC. Res. 1132 (8 Oct. 1997) (Sierra Leone). On Liberia, see also SC. Res 813 (26 March 1993). The latter does not provide a mandate for ECOWAS to use force on Liberian soil; impose economic sanctions on warring Liberian parties, nor particular regions within that state. UNSC Res 788 cited in K.O. Kufuor, ‘The Legality of the Intervention in the Liberian Civil War by the Economic Community of West African States’, African Journal of International and Comparative Law Vol. 5 (1993) p. 1. W. Ofuatey-Kodjoe, ‘Regional Organizations and the Resolution of Internal Conflict, The ECOWAS Intervention in Liberia’, International Peacekeeping Vol. 1 No. 3 (Autumn 1994) pp. 271–3; 289–90. Hospitals, schools & civilians were apparently targeted and bombed. See Zacarias, A., The United Nations and International Peacekeeping Tauris Pub (London 1996) p. 122 and notes 31 & 32; Kufuor, ‘The Legality of the…’ at pp. 554–5 and note 176 at p. 555. Ofuatey-Kodjoe, ‘Regional Organizations…’ pp. 285; 291. H. Howe, ‘Lessons of Liberia’, International Security Vol. 21 No. 3 (Winter 1996–7) pp. 154–7. F.H. Fleitz, Jr, Peacekeeping Fiascoes of the 1990s Praeger (Connecticut 2002) p. 159. Y. Gershoni, ‘War Without End and an end to a War, the Prolonged Wars in Liberia and Sierra Leone’ African Studies Review Vol. 40 No. 3 (December 1997) pp. 66–7; K. Cain, ‘Send in the Marines’, New York Times (8 August 2003) p. A17. F. Olonisakin, ‘Mercenaries Fill the Vacuum’, The World Today Vol. 54 No. 6 (June 1998) p. 148. P. Singer, Corporate Warriors Cornell Uni. Press (Ithaca & London 2003) p. 57. Howe, ‘Lessons of…’ p. 162; Ofuatey-Kodjoe, ‘Regional Organizations…’ p. 295. Howe, ‘Lessons of…’ pp. 159–60. Howe, ‘Lessons of…’ p. 163. Howe, ‘Lessons of…’ p. 176. Subsequent deployments of ECOMOG’s Nigerian peacekeepers in Sierra Leone (much as in Liberia) were apparently notorious for looting, trafficking in diamonds and drugs, arms sales to insurgents, stealing from aid supplies, rapine and murder of civilians. One particularly alarming claim is that they allegedly slaughtered 50 patients in a Freetown hospital. See H. Morgan, ‘Bad Company’, The New Republic Aug. 18 & 25 (2003) p. 10. E. Hanson, ‘An ECOWAS Protocol on Natural Resources: A Sure Way of Eliminating Conflicts’, Public Agenda (Accra 28 Aug. 2006) viewed on 3 Sept. 2006 at .


111

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See Infra Chapter 6.3. This is probably one reason why military associations seem to be multiplying. A new Central American peacekeeping force of battalion size was announced in March 2006. It is to be comprised of troops from Guatemala, Nicaragua, El Salvador and Honduras. See Stratfor.com, ‘Honduras: Peacekeeping Force to be Created’ (24 March 2006) viewed on 28 March 2006 at . For a summary of proposals by Urquhart, the Dutch government, US Congressman McGovern, the Canadian proposal, the ‘Multinational Standby High Readiness Brigade’ or SHIRBRIG, other regional rapid reaction forces & UK joint rapid reaction forces, see T. Pippard & V. Lie, Enhancing the Rapid Reaction…; J. Laurenti, Partners for Peace: Strengthening Collective Security For the 21st Century UN Assoc of the USA (New York 1992) at ch. 3 ‘Mars, God of Peace’, pp. 27–42. Eg, C. Conetta & C. Knight, Vital Force: A Proposal for the Overhaul of the UN Peace Operations System and For the Creation of a UN Legion Project on Defense Alternatives, Monograph No. 4 (1 Oct. 1995) viewed on PDF on 25 April 2005 at <www.comw.org/pda/vforce.pdf>. See pp. 67–9 for other models. Also C.A. Cannon & A.A. Jordan, ‘Military Aspects of a Permanent UN Force’, being Appendix IV in Frye, A United Nations… pp. 161–71; and a range of views and experiences within D. Cox & A. Legault (eds), UN Rapid Reaction Capabilities: Requirements and Prospects Canadian Peacekeeping Press (Canada 1995). B.D. Lepard’ ‘Prospects for a Permanent UN Military Force: Lessons from the Debate on the French Proposals at the Paris Peace Conference of 1919’, American Society of International Law Proceedings Vol. 88 (1994) at pp. 390–1. For some examples see W.R. Frye, A United Nations… These include a joint resolution of the US Congress for a world military force in 1910 at p. 48; a 1957 Congressional resolution supporting a permanent UN force at p. 68; a 1925 League of Nations proposal to oblige members to contribute to a force to subdue aggressors at pp. 48–9. The League mandated military force sent to successfully oversee the Saar Basin plebiscite in 1935 at p. 5. For an article by the then chair of the US Senate Intelligence Committee see D. Boren, ‘The World Needs an Army on Call’, New York Times (26 Aug. 1992) p. A21; also editorials within the more liberal US press: New York Times, Editorial, ‘A Foreign Legion for the World’ (1 Sept. 1992) p. A16L; New York Times, Editorial, ‘The New Blue Army’ (20 Sept. 1992) p. 16E. See A. Roberts, ‘From San Francisco to Sarajevo: The UN and the Use of Force’, Survival Vol. 37 No. 4 (Winter 1995–6) at footnotes 38 & 39 at p. 25. M.E. O’Hanlon, ‘Saving Lives with Force: An Agenda for Expanding the ACRI’, Journal of International Affairs Vol. 55 No. 2 (Spring 2002). O’Hanlon suggests a figure of 100,000 soldiers. E. Schrader & T. Allard, ‘US Push for Global Police Force’, The Sydney Morning Herald (June 28–29 2003). This contrasts with former President Clinton’s proposal over a decade ago for a rapid reaction force firmly under UN control. See National Catholic Reporter (Editorial), ‘US Self-


119 120 121 122 123

124

125

126

127

Interest Fails Floundering United Nations’ (August 12 1994) Vol. 30 No. 36 p. 24. P. Wintour & N. Watt, ‘Blair’s Mission on Africa’, The Guardian (8 Oct. 2004). Reuters, ‘Africa Agrees on Rapid Response Force’, The Australian (1 March 2004). E. Mai at [email protected] citing Associated Press report (19 June 2004). Agence France-Press & C. Banham, ‘ASEAN Considers Peace Force’, Sydney Morning Herald (23 Feb. 2004). N. Hodge, ‘Blackwater CEO Touts A Private Peacekeeping Model’, Conflict News viewed on on 8 March 2005/; B. Sizemore, ‘Blackwater USA Says it can Supply Forces for Conflicts’, Norfolk Virginian-Pilot (March 30 2006) viewed 1 April 2006 on the . WorldNetDaily.com, ‘Cronkite Wants Standing UN Army’, viewed on 2 July 2002 on ; Citizens for Global Solutions, ‘Time Has Come for a UN Emergency Capacity’, viewed on 2 April 2005 at . E. Childers & B. Urquhart, Renewing the United Nations System Dag Hammarskjöld Foundation (Sweden 1994) p. 118. Their example is protection of the Red Cross/Red Crescent. Childers & Urquhart, Renewing the… pp. 204–5. There had been some success with a somewhat similar entity. In the 1990s the United Nations Guards Contingent in Iraq (UNGCI) escorted relief columns, provided protection for relief workers and carried out security assessments. See UN Office of the Coordination of Humanitarian Affairs: Humanitarian Report (1997) viewed online PDF file on 26 April 2005 at p. 2. Admittedly the Contingent operated in unusual circumstances. Urquhart has pointed out that the UNGCI functioned inside a state still under UN sanctions, mandatory Chapter VII resolutions and only a few minutes flying time from US air force bases in Turkey. B. Urquhart, ‘The UN and International Security after the Cold War’, being ch. 3 in A. Roberts and B. Kingsbury (eds), United Nations, Divided World 2nd ed. Clarendon Press (Oxford 1995) p. 88. Even so, although it was small in number and reached only a few hundred at its peak, the Guards’ role proved valuable. Office of the Iraq Programme/Oil for Food, Statement by B.V. Sevan Executive Director of the Iraq Programme at the Informal Consultations of the Security Council (19 Nov. 2002) viewed on 26 April 2005 on . World Summit Outcome UN GA. (15 Sept. 2005). UN Doc A/60/L.1 at para. 92. The sense in rapid deployment forces has been acknowledged by at least some humanitarian actors as well. See Oxfam Press Release, ‘Oxfam Calls on UN Security Council to Protect the People of Bunia, Ituri District, Democratic Republic of Congo’ (10 May 2003) viewed on 29 May 2005 at .

38 Privatising Peace 128

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R. Carroll, ‘Papers Prove US Knew of Genocide in Rwanda’, Sydney Morning Herald (1 April 2004) viewed on 25 April 2005 at . BBC News, ‘Call to Back UN Genocide Reform’ (14 Aug. 2005) viewed on 14 Aug 2005 at ; BBC News, ‘Genocide Pact ‘Needs PM’s Help’ (21 Aug. 2005) viewed on 22 Aug. 2005 at . J. De Capua, ‘UN Negotiations Underway on Genocide Agreement’, Voice of America News (22 Aug. 2005) viewed on 23 Aug. 2005 on . A. LeBor, ‘Is there Blood on His Hands?’, Sunday Times (UK) (1 Oct. 2006) viewed on 1 Oct. 2006 at ; A LeBor, ‘Kofi Annan May be Charm Personified but His Time at the UN Saw Slaughter on a Vast Scale’, Seven Magazine/The Sunday Telegraph (25 Feb. 2007) at pp. 46–7. UN News Centre, ‘Vigilance is Vital, Ban Ki-Moon Stresses at Rwandan Genocide Exhibition Opening’ (30 April 2007) viewed on 2 May 2007 at . A. Morrison, ‘Efforts to Establish UN Stand-By Arrangements: An Historical Account and Appraisal’, being ch. 10 in Cox and Legault, UN Rapid Reaction Capabilities… p. 46.

3 From Mercenary to UN Contractor?

Until the UN establishes the concept of rapidly deployable forces, or as a minimum a rapidly deployable headquarters element to fill that initial vacuum, UN PSOs [peace support operations] will deploy against a strong counter current. PMCs are formed entities – they are responsive. Their force structures are already identified, their logistical and administrative tails organised. They have a leadership cadre ready to deploy. This is their core business rationale. They have personnel who are motivated to serve; they have personnel who are experienced, who are trained, who are physically equipped, and who are disciplined. J.D. Jefferies1

3.1

Introduction

This chapter examines an evolving international military labour market. The general argument is that the conspicuous prejudice widely attached to non-state mercenarism and military support does not withstand analytical rigour. States and their predecessors have always employed both private and public labour in armed conflict. This arrangement has been ubiquitous over centuries and continues today. The second section contains an analysis of connotations attached to mercenaries and their often misrepresented past. The third section examines some persistent classification problems arising from an industry with a broad and sometimes ambiguous range of roles. The fourth describes several types of hitherto unidentified state mercenarism – a simple conceptual step but one curiously absent from the literature. The fifth examines the confusing posture of the UN, which 39


alternates between criticisms of PMSCs on one hand, while hiring some of their services on the other. The sixth section provides a taxonomy that includes modern varieties of civilian logistic support and related services. The seventh condenses into a few pages contractor virtues that an advocate is likely to believe and promote; then lists several examples of services the UN might gainfully outsource. The summary steps back somewhat from the buoyant prognostications of the latter section, mindful that the following two chapters explore contrasting risks that suggest a more cautious assessment.

3.2

An historically pervasive means of waging war

In mixed company the term ‘mercenary’ carries a reliably disquieting if wholly explicable connotation. Whether dependent on conscripts or volunteers, the modern army relies implicitly on loyalty to the state. As Anthony Mockler put it, the mercenary has no place here because s/he scandalises a fundamental myth of the nation-state: that patriotism must be the sole reason for taking up arms.2 That is the key to what is thought to be wrong with mercenarism. This belief has in turn been sustained by a widespread ignorance of military history. Nor is the stigma attached to the mercenary label an historical oddity. The mercenary ordure has been actively inflated, sustained and promoted for rational political purposes. Ideological opponents labour diligently to successfully transfer to the present the semantics and imagery attached to undesirables of another era. Yet the adventurers of two generations ago would be out of place in the corporatised private military and security companies of today. This is not to deny that one might reasonably oppose some mercenaries as a matter of principle. Those employed several decades ago against indigenous groups by colonialists or neo-colonialists are one example.3 Infamous and ultimately unsuccessful units of mixed competence notoriously fought in the Congo and elsewhere in Africa during the 1960s. Opposing that kind of violence and those who engaged in it has seemed ethical to anti-colonialists in particular.4 More recently, paramilitary PMSCs in Iraq have engaged in excessive violence in the absence of a functional criminal justice regime.5 To oppose their deployment in the absence of proper criminal restraint is another reasonable view. These criticisms do not obscure the fact that there is nothing natural or permanent about the present organisation of military forces. It was only comparatively recently that state building autocrats wrested a

From Mercenary to UN Contractor? 41

monopoly over legitimate violence from their competitors.6 Mercenarism has traditionally been an unremarkable means of waging war for any number of groups and causes. From the ancient world to the formation of modern states in the seventeenth century, hiring mercenaries has been a matter of unremarkable convention. Particular regions held reputations for the efficiency and skill of their troops. In the ancient era the Greeks were well-considered. Much later, it was the Swiss.7 As late as the eighteenth century all the major European armies relied heavily on mercenaries serving an internationalised military labour market.8 For example, the British employed their King’s German Legion in the late eighteenth and early nineteenth centuries while the selection of mercenaries for service within regular British and Indian Gurkha units continues today. And the Papacy enjoys the distinction of being the beneficiary of the longest continuous mercenary contract in history: that between the Vatican and its Swiss guard. Both cheerfully celebrated a five hundredth year of loyal service in 2006.9 One does not have to delve back far in more modern times to find examples of military employment which confound stereotypes of enduring crudity. During the Spanish Civil War General Franco deployed colonial forces against an International Brigade that by some yardsticks was also mercenary. Perhaps surprisingly for a regime that elevated racial purity, Nazi Germany employed more foreign soldiers than any other state involved in World War II.10 On the other side Americans donned foreign uniforms and took foreign orders and currency when fighting in the Battle of Britain for the RAF; and the French Foreign Legion did not prove so sentimental over the notion of a democratic rather than Vichy French state as to prevent its regiments fighting on both sides. Whether ancient or modern, warfare has often confounded those who expect a predictable demonstration of allegiance to one party and no other. During the Cold War communist advisers from East Germany, Russia, China and Cuba assisted fraternal comrades in various theatres for honourable reasons as they probably saw it. The West had its own examples. British officers and NCOs commanded Baluchi and Omani troops on behalf of the Sultanate of Muscat and Oman from the 1950s to the 1970s. Nor is there a shortage of more recent examples likely to confuse those seeking an easy, homogeneous profile. The Saudis employ Pakistanis. The French have their Foreign Legionnaires and the Spanish their own less publicised Foreign Legion, which employed foreigners until the mid-1980s.11 There have been Tamil separatists from Sri Lanka fighting in the Maldives;12 Koreans in the Congo;13 Britons


assisting Turks in Cyprus;14 South Africans and Britons in Papua New Guinea;15 and American mercenaries in Colombia16 and Azerbaijan.17 Depending on how liberal one’s criteria might be, the idea of the mercenary is further clouded by the difficult categorisation of several thousand Western security personnel who have been employed in Iraq from 2003 to the present. The use of mercenaries has been common over the centuries for very plausible reasons. When life was much briefer, those who lived a comfortable existence did not wish to risk their lives fighting when they could hire foreigners to carry out this task. The idea that there is something wrong with this arrangement is quite recent. In the mid-eighteenth century the French king Charles VII found himself contemplating thousands of unemployed Gascon and French mercenaries who had returned from an unsuccessful campaign in the service of Emperor Frederick III. These bands were a threat to Charles’s feudal authority. Mockler records that Charles took some of them into his pay, crushed the rest and formed the first regular standing army in Europe.18 Evolving states’ interests eventually caused mercenarism to weaken for other reasons. Governments required citizens (some of whom were no longer subjects) to restrain themselves from individual acts of violence against other states or their citizens. As Thomson observed, states’ rulers began to claim exclusive authority over the space within their boundaries, making it increasingly difficult to disclaim responsibility for violence originating from within those same borders.19 A sensitive distinction arose: between international violence carried out by an individual – characterised as a private and usually criminal act; and the act of a nation-state, being one of aggression.20 Thomson is probably correct in her view that the origin of anti-mercenary laws was the need to prevent citizens from intriguing with other states or forming their own private armies.21 She also points out how states’ leaders did not intend to eliminate mercenarism altogether, as many benefited from it. Instead, mercenarism was gradually displaced by the rise of neutrality. Through neutrality states’ governments could create new controls over their citizens and enhance their monopolistic authority to make war.22 This seems a strong claim and states retain a clear interest in restraining their citizens from interfering with a sovereign posture of neutrality. The French further honed the mercenary’s nemesis with the creation of the mass conscript army and nation-in-arms. French mercenarism


was not extinguished by this development. But conscription in defence of the revolution took advantage of what Gooch called ‘…the bond which existed between the citizen and the state by converting raw enthusiasm into military power’.23 This was something the Germans further refined during their successful FrancoGerman War of 1870–71. Bismarck excluded foreigners from his conscript army and his model remained the standard for many in the twentieth century, if a sharply decreasing number today. Even so, as mercenarism became less popular, replacements were not recruited solely from ranks of patriotic or conscripted citizens within the borders of sovereign states, to be projected outwards in centripetal fashion. Vast numbers of new soldiers were instead recruited from colonies outside a territorial homeland. Colonial forces numbered in the hundreds of thousands in World War I and the Indian Army alone reached 2.5 million during World War II. Colonial militaries on this scale proved a decisive element in both conflicts.24 States will continue to manoeuvre the international labour market in military services to serve their purposes. Ancient mercenaries were once a part of this phenomenon, just as colonial troops were more recently and corporate services form part of it today.

3.3 Who is a mercenary? Problems of definition and classification A modern definition of the term ‘mercenary’ would be helpful in order to avoid confusion over several types of related but quite different employment. Yet the question of definition is surprisingly difficult. If most mercenaries are professional soldiers but all professional soldiers are not thought to be mercenaries, what is the difference? Contrary to popular belief, this is not a question that revolves around money or nationality and little else. After all, no state’s soldier can carry out his or her task entirely on a diet of patriotism and taxpayer-funded board. At some point they have to be paid. There is simply no means of being certain that money is not a primary motivation for many states’ soldiers. This is particularly the case in armies where volunteers rather than conscripts fill the ranks. In both poor and wealthy states, money will at least be a consideration25 and one not necessarily tied to patriotism. It would seem ignorant to assert that a state recruit’s motivations do not spring from social forces like ethnic and racial exclusion, limited vocational opportunities and poverty.26


Professor Detter goes further, suggesting that the sort of trained person who would have sought personal gain as a mercenary in the past may now be a typical volunteer with UN peacekeeping forces.27 This person might also work in private security. Fijians in Iraq have been employed by both the British Army as well as UK security companies. Employees of both send home remittances which in 2006 represented one of the country’s highest export earners.28 Why should one group face discriminatory judgement when both sell their skills to foreigners on the same belligerent side? The desire for foreign citizenship has been a consistent transnational motive, fuelling an old rather than new form of mercenarism. Mercenaries seeking new passports have been warmly embraced by the United States and that phenomenon is very much alive today. Almost 175,000 US soldiers who served in World Wars I, II and Korea were immigrants who were then naturalised.29 In Iraq thousands of uniformed soldiers currently serve in US forces but they are not American citizens. Each bears the risk of a personal and lethal bargain: the opportunity to become a US citizen in return for inflicting political violence on behalf of the American state.30 In 2005 there were about 37,500 foreign citizens from scores of states serving in US active duty, national guard and reserve forces.31 More than 25,000 legal immigrants over 2002–2006 risked their lives to expedite citizenship claims by joining the US military through a program designed for this purpose.32 Their transition was uncomplicated because these soldiers were not identified as foreign mercenaries – which is what they were. This naturalisation scheme nonetheless proved inadequate. When a retired US brigadier suggested boosting numbers by opening a recruiting station in India, this seemed a logical enough suggestion.33 What was probably unexpected was prompt endorsement of the idea from the then director of US Army military personnel.34 The Americans are now so short of soldiers that in 2009 they formalised a program to recruit temporary visa holders – in other words, those who are not permanent residents and do not hold green cards. The scheme is eventually expected to supply no less than one in six recruits to the US Army.35 Nor is this phenomenon something peculiar to US circumstances. The Australians are also short of recruits and considering the same concept.36 The Russian Army copes with shortages by recruiting from CIS states like Tajikistan, Ukraine, Belarus and Azerbaijan. After three years of service foreign troops receive Russian citizenship.37 The British are no different, having experienced a steep rise in foreign-born


recruits who may apply for citizenship after five years of service. Since restrictions were lifted in 1998 their numbers in the Army alone rose from 430 to 6600 by April 2007.38 At a base level some mercenary recruits are doubtless attracted by what might be considered exciting or gratifying. The notorious mercenaries who fought in the Congo in the 1960s were there for money to some extent. But they probably held other, less easily defined motives about which it is not easy to generalise.39 And these may not have been reprehensible. In the West there is much euphemistic cant about ‘the military life’. Romantic sophistry to one side, military life is largely concerned with the repetitive rigours of training in efficient forms of multiple homicide. There is nothing wrong in principle in many thousands finding this a satisfying life, even if smaller numbers actually enjoy fighting. But for those who do, Mockler suggests society demands that pleasure in war ‘…should be masked, often hypocritically, under the pretence of devotion to duty’.40 He points out how in some places a culture of fighting has been historically free from these constraints. Japan is one example. If some of the mercenaries of the 1960s held motives that may have been unhealthy, one should acknowledge that it is equally possible for states’ soldiers to be driven by violent or morbid pathologies of one form or another. These could afflict the recruits of most states’ armies and one might expect the poorer militaries to be more vulnerable. It is easy to imagine that screening for psychological fitness and other prudent forms of discrimination are likely to be primitive in these less advanced states. (Bear in mind that poorer states fill the ranks of major UN donors today.) Perhaps surprisingly, this is not so. The most advanced military in the world has recently lowered standards on fitness, education and drug abuse among recruits. The US armed forces have done so in the face of falling supply as the war in Iraq becomes increasingly unpopular at home.41 The decline has reached a point where conservative commentators have suggested that recruiting healthy foreigners with the enticement of US citizenship is better than the preferred option of recruiting Americans with criminal convictions, incomplete high school education and poor cognitive aptitude.42 In this climate it is not surprising that the US Defense Department seeks changes to legislation which will make it easier to re-classify civilian jobs so that occupants may be sent overseas.43 More perplexing is the growing gap between the demographic cohort recruited to the armed forces and the US population as a whole. This is manifest in what David Kennedy terms the modern military’s ‘disjunction’ from


American society.44 Perhaps American elites have more in common with privileged medieval Europeans than they care to admit. Both sought (or seek) to avoid ending a relatively pleasant life on a squalid battlefield. There are other ways of viewing the subject. A French legionnaire may serve the interests of France then leave his regiment after a term of service. A Gurkha may serve in the British or Indian Armies and later repatriate to Nepal. The surviving socialist in the International Brigade might have returned to his home state. Excluding inevitable exceptions each of these veterans is or was likely to resist subsequently serving the interests of their ex-employers’ enemies. Put another way, few of them were or are likely to have been without some residual loyalty to their past masters. In this sense none of these three could be compared with the condottieri of fifteenth century Italy. These were probably the purest form of mercenaries. A condottieri was a mercenary chief who executed a contract called a ‘condotta’. The corresponding party to the subsequent hiring of mercenary troops was a prince or representative of a city. The relationship was one of a purely business nature, where no loyalty was expected outside the bounds of the contract. The French Foreign Legionnaires and Gurkhas are both well-regarded mercenaries whose status is debated with vigour. Some senior officers believe that because both serve within national armies (French and British/Indian respectively) this apparently makes a difference.45 This seems an oddly uncritical belief. Both the Gurkhas and the Legionnaires easily meet a four-step test for mercenary status as an industrial lawyer might formulate it. First, they are nationals of states other than the state which is their employer. Second, they wear military uniforms identifying them with service in their foreign employer’s state. Third, they take orders and bear arms in the service of that foreign state. And fourth, they are paid by that foreign state. These are reasons why these mercenaries are likely to be exactly the sort of contractors who could (and probably should) serve Security Council mandates more readily than soldiers of most states. Loyalty peculiar to a mercenary legion or regiment is a positive attribute in this context. As Flora Lewis put it, they are ideal for the UN because they would be ‘beholden to no other master’.46 Others fulfil the four leg test above if one substitutes another entity for ‘state employer’. Consider the socialists and communists of the International Brigade who served in Spain against the fascists.


They were political idealists and often considered pure in motive (this aspect holding an elevated value in some eyes.) But in nationality, uniforms, military discipline, the bearing of arms and payment,47 they more than adequately meet criteria for mercenary status. And their motives were not necessarily unusual. It would seem that adventure, political conviction and belief in a cause have often been primary motives to take up arms. The politicised units which fought Franco’s soldiers are certainly one example of this. On the other side, Franco’s various forces may or may not have believed in the fascist regime with equal fervour. If one persists in attempts to divide soldiers into those who fight for patriotic nationalism and those who do not, there exist further inconvenient facts which defeat that intention. For example, to suggest that a mercenary fights for both money and in the service of a foreign power is historically unsatisfactory. Hessian conscripts were involuntarily sent to fight by their German superiors who hired them out to George III and the English in their war against the Americans during the 1770s.48 They in turn fought other German mercenaries who were hired by George Washington to lead and train the army upon which the Americans relied.49 Motives for mercenarism have varied over the centuries. But military labour forces seem to have been consistently mobile. Urquhart suggests that service to a UN legion would carry a noble cachet in the minds of recruits.50 This may be true, but why should it be any different if these recruits were members of a contract legion? If one looks further than conventional prejudice there is no reason to think pure motives might not inform the purposes of an upright contract soldier. Why shouldn’t s/he believe that his or her service would make the world a better place in some small but tangible degree? This is why the case that Lynch and Walsh argue is one not easily dismissed: that a mercenary might take up arms for the UN solely in the name of what s/he considers a just cause while rejecting all others.51 This appears at least an intuitively reasonable premise. The distinction between a mercenary available to oppose internationally legitimised conduct and one willing to carry out that same conduct is one never drawn by those who oppose the use of mercenaries. One could put the point more dramatically: what soldier could be more selfless than an individually recruited contractor who effects a contested entry in a collapsed state as part of an humanitarian intervention? Here is a modern military exemplar waiting to take form.


3.4

An unexceptional mercenary: the UN member state

States’ forces are rarely identified as mercenaries. This is curious. By comparison with individual persons, corporations or criminal syndicates, states are by far the most mercurial and violent of any mercenary entity and it is logical for their governments to defend lucrative, strategic or otherwise beneficial interests forcefully. For example, where military violence by states is deployed for private benefit the UN expert committee on mercenarism has referred to this phenomenon as ‘commercialized national army units’.52 The phrase has a benign, businesslike sound compared to the more jarring and equally correct ‘state mercenarism’. When referring to Zimbabwean weaponry and labour supplied to the Congo’s Laurent Kabila in return for payment in extractive industry rights, Herbert Howe inched closer to the truth. His term was ‘military mercantilism’.53 David Shearer was more candid, suggesting that the DRC government ‘rent[ed]’ military assistance from the Zimbabweans ‘…in a manner not dissimilar to a private company’.54 A UN investigative panel concluded that the Zimbabweans were plundering DRC resources through the commercial activities of their defence forces. This conduct corruptly benefited a few senior military and party officials.55 Such was the price of an invitation for military assistance from the Kinshasa government in 1998 when threatened by Rwandan and Ugandan supported rebels. Worse, because the Zimbabwean government had ruined its own economy, its elite corruptly laundered profits through the conflict in the DRC.56 Similarly, Ugandan politicians and military officers benefited personally through gold and diamond shipments flowing from Congo operations.57 Likewise, Nigerians in ECOMOG harnessed their military to extract money from timber, diamond and other businesses that lay in Liberian regions they temporarily occupied or controlled.58 Much of this conduct has occurred while Africans emphasise the need to find African solutions to African problems. Commentators (several holding UN positions) persistently tend to exaggerate the risks attached to nonstate mercenaries while largely ignoring the far more lethal implications of military mercantilism in the service of corrupt African elites. The latter are to be found in Angola, Uganda, Rwanda and Zimbabwe, among others.59 For rulers of these states personal enrichment is a major determinant when considering foreign deployments. This is why their military commands are often warlord fiefdoms which defend valuable assets rather than less selfish goals.60 Hence there is nothing ill-conceived or wrong-


headed in identifying their behaviour as ‘mercenary’. Earlier reasoning suggested that the motives of privately employed mercenaries are difficult to determine and categorise. That is not the case here. Financial ambition was unambiguously identified as a criterion in the definition of an individual mercenary in the 1977 First Protocol Additional to the Geneva Conventions;61 and with some incongruity, in the anti-mercenary OAU Convention.62 The irony in both suggests a yawning conceptual vacuum. With or without their own mercenaries, states’ governments pose a much greater danger to civilians than PMSCs, while at the same time imperilling the value of sovereignty. Several African elites profit from what Dietrich calls ‘patrimonial networks’.63 Some occasionally escape criticism through undistinguished analyses of anti-mercenary treaties.64 And all benefit from a muted response by Africans to state mercenarism. Consider the ‘Revolutionary United Front’, a now defunct insurgent movement in 1990s Sierra Leone. The RUF was financed, trained and supported by the Liberian despot Charles Taylor in return for a supply of Sierra Leonean diamonds.65 He engaged in a type of state mercenarism one step removed from the fighting. This might be viewed more conventionally as a form of criminalised Liberian state industry. Profit was generated from the supply of weapons and materiel rather than labour, as is the case in more conventional state mercenarism. From 1991 Taylor at various times had food, fuel and medicines flown to RUF held areas in order to further his political and financial ambitions.66 At the time of writing Taylor is being tried in the Hague for some of his more serious crimes. He was not unique. Other African governments have been implicated in a UN Report which alleges that they armed and supported UNITA rebels in Angola in return for a supply of conflict diamonds.67 Another, more public form of state mercenarism is common among poorer UN members. They engage in UN peacekeeping primarily (but not necessarily exclusively) for the money their governments are paid. In return they send troops who are poorly equipped, ill-trained and who sometimes misbehave. Several poor states’ governments are known to view the financial benefits earned by their citizens’ deployments as a considerable windfall. It is worth recalling that as UNOSOM II ran into difficulties in Somalia, the US, Belgium, Italy, France, Sweden and Norway began to withdraw. As the Western troops pulled out they were replaced by soldiers from Egypt, Pakistan, India, Bangladesh, Malaysia and the UAE.68 In these circumstances states’ governments routinely become mercenaries of a carefully premeditated kind.


A different and very old kind of state mercenarism occurs when strong states go to war while paying weaker allies to support them. The governments of Thailand, South Korea and the Philippines were paid by the US (or bribed, depending on one’s view) to send soldiers to aid the Americans in their misadventure in Vietnam.69 The usual retort is that these states held a strategic interest in supporting the anticommunist campaign in Indo-China. This may have been so. But one wonders how enthusiastic the Thai, South Korean and Filipino governments would have remained if each had been required to pay the entire cost of their deployments. Some were sizeable and lengthy. Mercenary states seeking political and financial advantage also send their troops to train and sometimes fight within the armies of other states in unstable parts of the world. Past colonial masters routinely dispatch trainers, advisers and military technical experts to former colonies to serve various purposes arising from self-interest: to secure sales of armaments which benefit home-state corporations; to exercise influence over choices of military and strategic policies as these evolve in newly independent states; to identify sympathetic or subversive elites and manoeuvre them as interests dictate; and to retain intelligence collection assets and exercise a valuable strategic presence in the region in an apparently benign form. For their part, elites within excolonial states have been pleased to benefit from this form of state mercenarism. Some use their new skills to put down rebellions by those ethnically distinct citizens who might inconveniently seek their own self-determination. For example, the British government for many years seconded or otherwise contracted its officers and NCOs to Oman to assist in the suppression of the Dhofar uprising. How would one view the status of these British soldiers if the Oman government had partly paid for these services with a favourable view of British arms sales? It is well known that the British have at times sold arms to the Oman government.70 Contrast the hypothetical example of a British mercenary company carrying out exactly the same task on behalf of its government and possibly at a lower cost to the UK taxpayer. Why should their business or its purposes attract any greater or lesser measure of repugnance or approval? It is noteworthy that the British firm ‘Saladin Security’ does in fact train Omani forces.71 One might speculate as to the positive influence this company has exercised on UK/Omani relations, which are in any case close. At the time of writing, negotiators from both states were favourably disposed towards a proposal for a ‘private finance initiative’ to build a defence academy valued in excess of $US1 billion.72


Governments of some states occasionally choose to hire out their armed forces to other states. Cleaver identifies Moroccans in the service of the Zairian dictator President Mobutu in the 1970s and Mobutu’s forces assisting the Rwandans in the early 1990s.73 Today the very modern Pakistanis hire their troops to Saudi Arabia in return for economic assistance.74 There is of course nothing new in this. Nor should it attract any particular disapproval. Janice Thomson has identified poor states leasing or even selling armies to rich states prior to the nineteenth century.75 And Sarah Percy has acknowledged the entrepreneurial success of the German states of Hess and Wurttemberg in selling their citizens to fight abroad prior to changes in the international system in the nineteenth century.76 The United Nations has recently joined the ranks of newer entities jostling to employ competing states’ troops. In In Larger Freedom the immediate past Secretary-General urged the UN to ‘…work with relevant regional organizations in predictable and reliable partnerships’.77 Mr Annan had intended placing regional organisa-tions possessing peacekeeping capacity within the UN standby arrangements system.78 And if he was not successful, a much starker proposal met a remarkably unruffled reception. He intended spending the assessed peacekeeping contributions of states to purchase the skills of armed forces from regional organisations where the Security Council might identify a requirement.79 If the fee proffered had met favourable market demand amongst competing tenders, it appears that Mr Annan would have recommended substituting regional coalitions of states’ mercenary forces for unreliable ad hoc states’ forces. This development was probably expected by those troops repeatedly volunteered by governments which sought financial gain through their deployment. Like Mr Annan, they would have recognised that this plan was a logical extension of what had gone before. But the idea of exploiting self-interest in order to serve a greater public good was poorly conceived. One problem was the absence of a basis on which to expect an improvement in soldiers’ troops’ conduct or that of their donor governments. Risk aversion, human rights breaches, racketeering and illicit extractive commerce would not have disappeared amongst Mr Annan’s new peacekeepers-for-hire. Past experience also suggests that a regional coalition is unlikely to be subject to human rights scrutiny or a criminal law regime more exacting than presently applies to forces under UN command. And this has been historically less than satisfactory.


3.5

The UN view of non-state mercenarism

The UN carries a history of trenchant opposition to non-state mercenaries. Adams has traced a 40 year path through deliberations of the General Assembly, Security Council, Economic and Social Council and the Commission on Human Rights.80 The date at which this resistance emerged is also significant as it coincided with a Security Council mandate in support of a newly created Congo government opposing mercenary-backed secessionists during the early 1960s.81 The mercenary personnel included a white company that probably numbered no more than 250.82 The company was allied to loyal native contingents assisted by Belgian military advisers83 and a gendarmerie bolstered by sympathetic Belgian officers.84 The total number of various mercenaries was unlikely to have exceeded 500.85 Although most of them were evacuated within roughly a year of their arrival,86 this brief episode nonetheless left an enduring and resentful legacy for several reasons. The mercenaries were mainly white Europeans and the rebellion served the material interests of three groups: a Western mining corporation; a small black elite holding selfish purposes; and a coterie of European colonials.87 In an age when the clouds of African liberation had gathered about the UN, such an enterprise was bound to create embitterment in several quarters: the UN Organisation; some still colonised populations; de-colonising and newly de-colonised states; and Africans amongst all of them. The Congo mercenaries also demonstrated a very public resistance to UN military forces, the will of the Security Council and that of its then Secretary-General. The Congo mercenaries also demonstrated humiliating limits to Hammarskjöld’s personal conception of peacekeeping. The Katanga rebellion forced the Security Council to expand its mandate and eventually apply armed force to an escalating political problem.88 In doing so, idealised notions of neutrality and non-intervention were compromised amidst the practical necessities of power politics. Embarrassingly, these included those principles originally embodied in the UNEF I mandate. Notably, this included avoiding the creation of a particular political solution, something that proved simply impractical. Hammarskjöld actually authorised the use of political violence even before the UNSC mandate had been widened.89 The point is that those imperfections in his peacekeeping and preventive diplomacy model largely propelled an unwanted experiment in the use of force. This was at times inexpertly carried out90 and caused concern elsewhere over the implications of a perhaps overly


militant UN.91 In reaching this point the Congo mercenaries had supplied a decisive provocation, which was a matter not easily forgotten.92 Last, personal attempts to end the rebellion led to the suspicious death of Mr Hammarskjöld, generally considered the most distinguished occupant of the office of Secretary-General.93 His demise inevitably magnified the Organisation’s perception of the ignominy of the secessionist forces and their white allies. There is some small paradox in this because mercenary interventions in Africa during this era were all failures and frequently incompetent. Even so, they stirred anti-colonial convictions in the collective consciousness of many UN members and especially those in the General Assembly.94 Memory of those times carries lasting consequences which resonate in the tone and purpose of more recent UN policy. In 1995 Mr Annan had a chance to engage an effective private military company to separate murderous Hutu executioners from those refugees who had escaped slaughter in Rwanda by fleeing west to camps just inside the DRC border at Goma. He appeared to dally with the idea of hiring the notably effective firm ‘Executive Outcomes’. Unfortunately for the refugees he chose not to go ahead.95 The PMC option would almost certainly have been more effective than his ill-fated reliance on a Zairian police contingent.96 In recalling this moment three years later Mr Annan conceded no failure on his part. He instead responded by dryly suggesting that ‘…the world may not be ready to privatize peace’.97 To some his remark implied an acceptance of the limits in what had been possible at the time. To others it suggested unsettling indifference to a lost opportunity for better leadership. This was not the only example. In 1996 EO was again considered for the creation of a secure humanitarian corridor as Rwanda’s refugee crisis escalated. No state would consider paying for it and the consequence of inaction was thousands of Hutu deaths.98 There has been some consistency between UN executive conduct and UN civil service research. Reports issued by the first UN Special Rapporteur99 on Mercenarism100 were reliably predictable for the fixity of their position over some 17 years. Typical is this extract from Mr Ballesteros’s 1997 Report: ‘…no matter how they are used or what form they take…[mercenaries] are a threat to the self-determination of peoples and an obstacle to the enjoyment of human rights by peoples who have to endure their presence’.101 This was an uncompromising stance and one which attracts a comparison of mercenaries’ conduct with that of states’ soldiers. States have never maintained military


forces to serve purposes enumerated within the UN Charter. States’ soldiers are employed to serve various government purposes, although on rare occasions the two coincide. The issue for Mr Ballesteros may have been non-state mercenarism. He may also have been driven by a broader and unyielding defence of that attachment between legitimacy and violence enjoyed by states. From 1987 to 2003 he balanced this with an absence of criticism of governments that have always inflicted harm on a much larger scale.102 He also ignored the more constructive work conducted by modern mercenaries who played a role in stabilising governments against insurgencies in at least two African states and another in the Middle East; and may have been pivotal in securing an emergent state in the Balkans; and bolstered another on the south-eastern edge of the Sahara through modern air power.103 The rapporteur’s certitude existed in some contrast to the less than enthusiastic support for his views offered by UN members. They took a leisurely 12 years to collectively supply the 22 ratifications required to bring the Mercenaries Convention104 into operation. One reason for the delay is that several governments have been loath to bind their hands. At least three signatories – Angola, the Congo and the Democratic Republic of Congo – have employed mercenaries within their borders despite having municipal laws that prohibit the practice.105 Other African regimes have exercised few scruples in the use of mercenaries employed to bolster their armed forces,106 the Nigerians being a leading example.107 It is instructive that these states and their governments remain curiously free of the moral odium attached to the mercenaries they hired. Governments which held doubtful popular legitimacy – but which have been on the ‘demand’ side of the business – usually emerged untouched. In contrast, the ‘supply’ side has been consistently targeted by Mr Ballesteros. It seems somewhat unlikely that training in human rights and the law of armed conflict would have been priorities for those governments that hired mercenaries to serve in Angola, Congo, the DRC or Nigeria.108 Diplomacy which supported the creation of the 1989 Mercenaries Convention implies something of the tenor of debate tolerated within the UN. Delegates delivered only limited criticism of those dated selfdetermination doctrines later repeated so doggedly over the years by Mr Ballesteros. Delegates also seemed to ignore ICRC’s criticism of the anachronistic irrelevance of these views.109 One wonders why UN members tolerated promotion of the Convention’s form when it was clearly unsuited to prevailing circumstances. Perhaps state-centric argu-


ments which do not jeopardise traditional prerogatives may be put with few challenges. It does not seem to matter that an opinion may be obsolete. By contrast, an argument which claims to legitimise a potential danger to insecure and illiberal governments seems likely to struggle for legitimacy. Unsavoury regimes hold a compelling imperative to deny the UN an efficient military apparatus. They have an even more powerful reason to resist an UN humanitarian intervention capacity. An uneasy UN duality over mercenaries, contractors and private security is noticeable elsewhere. In the 1990s the UN hired ‘Lifeguard Security’ to protect its premises in Freetown during instability in Sierra Leone.110 It was well known that Lifeguard was staffed with former Executive Outcomes personnel, one of Mr Ballesteros’s recurring targets. Yet they protected UN officials’ homes and offices and apparently provided UN staff with use of a military transport helicopter.111 An ex-military pilot has described how UNAMSIL in May 2000 also supplied rockets and fuel to pilots of ‘JESA Air West Africa’. It appears company aircrew undertook military operations using Sierra Leonean helicopters in accordance with authorisation provided by the UNAMSIL Force Commander.112 The same personnel apparently rescued embattled UNAMSIL peacekeepers on several occasions113 while other PMC employees also assisted ECOMOG in Sierra Leone.114 Contract aviators from Sandline transported UN officials and are alleged to have rescued various expatriates who would have been killed if captured by the RUF.115 Mr Ballesteros’s view was unconvincing in another sense. For it has not been mercenary corporations or interstate war which have routinely inflicted the most harm upon citizens of states over the latter half of the last century. A point made by Steven Brayton is that corrupt native soldiers and their dictatorships have proved far more dangerous than mercenaries.116 This argument points to a larger and quite remarkable argument put by the American R.J. Rummel: that interstate warfare destroyed fewer lives in the twentieth century than governments inflicted within their own borders. It is government which has proved more lethal to its own citizens.117 Ironically, it was the search for a general interstate peace after World War II which drove the drafters of the UN Charter to forge a document that explicitly defends principles of the sovereign equality of states,118 non-use of force119 and non-intervention amongst members.120 These serve to protect UN states whose conduct shows an acceptance of rules and norms. They also shelter those whose conduct suggests otherwise.


This should not be surprising. ‘War makes states’, declaimed Charles Tilly,121 before establishing a convincing analogy for state making as a form of racketeering or organised crime.122 Tilly was careful to acknowledge that the analogy could be overdone. However, in lurching to judgement of the industry, it is well to recognise that government remains the chief extractive, repressive and threatening authority likely to inflict itself on any state’s citizen. This is the case whether government is a modern democracy or an oppressive dictatorship. It is also helpful to remember that Mr Ballesteros and his successor Dr Shameem never represented the welfare of hapless victims within states. They represented states. The distinction matters greatly because it is states’ representatives who execute and ratify treaties, not those often captive populations who endure their governments’ sometimes brutal administrations. The demos or political entity represented by a population does not find its personification in every government. Tyrannical leaders will resist threats to their monopoly on legitimised violence by resorting to indigenous forces or illdisciplined foreign mercenaries. Since 1945 both have been employed to subjugate unfortunate populations. Such governments will have been heartened by Mr Ballesteros’s sixteenth and final report, which was an essay in unrelenting dogmatism, in which PMSCs were painted in the blackest of terms.123 He also referred to the need for international and national laws to regulate these companies and means to: …differentiate military consultancy services from participation in armed conflicts and from anything that could be considered intervention in matters of public order and security that are the exclusive responsibility of the State.124 But it is precisely the authority of a number of states which poses an increasingly vexed issue. What of states administered by delinquent governments whose daily occupation is extracting resources from state assets? This is the case in several African examples. For that matter, how would Mr Ballesteros have categorised the training of Croats within their fledgling republic by the American military train-andequip firm MPRI? This preparation subsequently led to a very successful military action against Serbian components of the former Yugoslav state. Did Mr Ballesteros support the uti possidetis principle (in keeping borders stable) and thereby side against the Croats; or for them through


support for the ‘self-determination’ of their people?125 And how would he reconcile one position with the other? One might turn the same argument on its head and argue that a genuine liberation movement attacking an illegitimate government should not be restrained as to where it might seek advice. Oddly, Ballesteros appeared to contest the nature of a perhaps legitimate national liberation movement which might oppose a tyrannical government.126 Even the Committee of Experts which followed Ballesteros and Shameem cautioned that there may be ‘some difficulty’ in his proposal to define a mercenary as one recruited to ‘deny self-determination’ while simultaneously ‘undermining the territorial integrity of a State’.127 He cannot have both. These conundrums suggest that human suffering in several troubled regions arises where government has become the problem rather than the solution. Mr Ballesteros believes that internal security should be a role for state organs and not delegated to a private company.128 Yet all over the world this is exactly what is occurring amongst states both rich and poor. The Special Rapporteur at least acknowledged the failure of the Mercenaries Convention in stopping mercenary numbers growing on five continents.129 He then explained the rise with the fallacious reasoning that this occurred because ‘…[e]mpirical evidence shows that international law does not deal thoroughly enough with mercenary activities’.130 This was a straw man. International law is often weak in enforcement. Economic forces would have been a more plausible well-spring for an argument as to why mercenarism thrives. He instead rebounded with a revision of the definition of ‘mercenary’ in light of the failure of the UN Convention. This landed him on contentious ground because he attempted to restrict a government’s prerogative in choosing personnel it might hire to defend national interests.131 Why should a sovereign government be prevented from hiring advisers and trainers from elsewhere who may assist in addressing its national security issues? He further confuses the matter by introducing the unexplained concept of ‘destabilization of legitimate governments’.132 He is silent on what criteria are to be met by governments seeking legitimacy. A proscription on hiring private military advisers would seem an unfair restraint where say, an embattled government has to make decisions regarding defence against criminalised insurgents assisted by the government of a hostile state. This would be even more unreasonable if that same beleaguered government unambiguously met Ballesteros’s unstated criteria for legitimacy. And a proscription on hiring mercenaries would be still more


unreasonable where the government of a hostile state which funds those criminalised insurgents does not meet his legitimacy criteria. The present group of experts who advise the UN on aspects of mercenarism sit on a committee called The Working Group on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Rights of People to Self-Determination.133 This title conveys a curious distortion. The Working Group was set up through states to serve governments’ interests. Its value in enhancing human rights or supporting self-determination seems doubtful. This is because the chief violators of human rights in this century and the last have overwhelmingly been states’ governments. For various reasons it has been quite common for government elites to embark on enthusiastic repression of various unco-operative minorities. While this occurs homicidal governments generally conflate their interests with those of the peoples they so often oppress, occasionally through states’ mercenaries. This is an old diplomatic ploy and a successful one as judged by ineffective efforts by others to stop them. Yet there will never be a UN Working Group on States as a Means of Violating Human Rights and Impeding the Exercise of the Rights of People to Self-Determination. This is not an anarchic or indulgent reverie. One Working Group purpose is to maintain pressure on armed threats to states’ governments.134 The point is that some of these governments are situated in states which are both UN members and violently authoritarian. The UN ‘High Commission for Human Rights’ website describes Working Group members by state nationality: Libyan, Colombian, Spanish, Russian and Fijian.135 One wonders how Chechens and Georgians construe Russian purposes in the working group; or how Indian Fijians might consider the purity of their government’s position. Only a few years ago Fijians of all races witnessed the removal of a democratically elected Indian/Fijian Prime Minister through an explicitly racist coup. Today the country endures an increasingly repressive military dictatorship. Insurgent Colombians are likely to view the Colombian expert with considerable scepticism. For that matter, separatist Basques would have little doubt that the Spanish delegate serves different interests to their own. And Libya is a state where according to Human Rights Watch in late 2008, political prisoners were murdered by the state, detainees tortured, there was no free press or independent organisations and ‘…violations of women’s and foreigners’ rights plague the country’.136 This dissent or that within the other four states is of course insufficient to fracture the robust legitimacy supplied to their governments. To the contrary, of the more violent groups which


gain control of states, very few are denied a seat at the UN table simply because they happen to be ruthless, criminalised cliques. It is not surprising that the UN attitude as evinced by its Commission on Human Rights remained distrustful towards private security in 2005.137 The Third Meeting of Experts convened in December 2004 with delegates drawn from states representing geographic regions138 rather than pertinence to the debate; although at that meeting the Committee recommended a conference at which representatives of PMSCs might attend,139 and IPOA and BAPSC representatives140 duly participated in the 2007 Regional Consultation for Latin America and the Caribbean.141 On a more positive note, Dr Shameem displayed an enlightened perspective in consulting with industry representatives in June 2005.142 Before her mandate expired143 she suggested a licensing and registration mechanism for companies in the security field.144 This seemed a constructive suggestion. UN registration and workable regulation have likewise been goals of certain PMSC management for some time.145 Regardless, there remains a deep ideological divide between the parties, which is not as simple as a weakness in ‘communication and mutual understanding’, as some observers suggest.146 Nor does it follow that mutual comprehension is ‘a short step’ to the establishment of common ground.147 Mutual comprehension can just as easily be a forceful reason to abruptly recoil before constructing a defensive intellectual perimeter. Will Dr Shameem’s Working Group colleagues remain on one side of an ideological divide between UN representatives, their civil service and advisers on one hand; and an increasingly wealthy and sophisticated industry on the other? The question is at least somewhat more open in early 2009 as the Working Group approached is sixth session in April and apparently considers fresh legal means with which to regulate the industry.148 For the present the UN retains a conflictual position on private military and security services. It publicly decries them but members employ them in various forms. There is a UN treaty for the suppression of mercenaries, yet the document is poorly drafted and lacks widespread support. UN organs face escalating threats to their operations, which at times compel them to hire armed contractors to secure employees’ safety. At the same time the Organisation’s senior staff issue polemical criticisms against various firms. The UN met defiant mercenaries with decisive violence once in the 1960s. But the Organisation has yet to demonstrate a coherent grasp of the modern private security phenomenon as a logical ally. It has poured resources into 17 years of reports and a more recent expert committee, but is only


beginning to engage with the industry in order to develop ethical models of operation and a suitable legal regime. It may be precisely because the industry understands various UN weaknesses that the Organisation’s institutions go to some lengths to resist outsiders’ assistance. Growing corporate capacities form an obvious threat to the control of peacekeeping and other operations. At present it remains too early to tell whether modern security companies will find eventual acceptance at the UN for constructive reasons which in turn promote adherence to a practical regulatory regime. It is equally possible that for some time these companies will remain transgressive figures treated with oscillating hypocrisy and ambivalence; where acceptance is stymied by obstructive conduct which serves interests other than the purposeful service of the Charter objectives.

3.6 A taxonomy of private military, security and related services The purpose of the taxonomy is to clarify the range and nature of private military and security services available in today’s marketplace. To that end, there exists a variety of perspectives.149 One of the more valuable models has been devised by the Canadian journalist James Davis, whose five categories are grouped around a combat or fighting emphasis.150 In broadening his model to fit the present context the author has added a second group of four non-combat classes and a range of academic sources which augment the case. One should be mindful that as industry capabilities have grown several firms now span multiple categories. For example, DynCorp carries out logistic support, technical support and civilian security services. The more general point is that assistance offered by companies will alter as military and security requirements shift over time and companies adapt to exploit change.151 (a) Combat Services (i)

Regular Foreign Units These are predominantly foreign, volunteer and integral to a national military apparatus. They include the Swiss Guards and Gurkhas, recruited through institutionalised states’ agreements,152 while the French Foreign Legion prefers individual recruitment. In the UAE, Qatar, Oman and Saudi Arabia,


Pakistanis have in recent decades figured prominently within the armed forces of each.153 (ii) Auxiliary Foreign Units These are units which recruit foreigners and are usually created for a specific conflict then disbanded when hostilities end. Also integral to a national military structure, they have included the British King’s German Legion, deployed during conflicts with Spain and France between the 1780s to the 1820s;154 the Flying Tigers during World War II; and Chinese Nungs employed by the US in Vietnam. (iii) Private Military Companies These commercial entities conduct combat or combat support operations. They supply command and control, fire support, communications, intelligence, planning and/or combat troops. Modern firms sometimes provide commanders, pilots and logistic experts. Historic and contemporary examples listed by Davis include the medieval Italian condottieri, the British East India Company,155 Chennault’s post World War II Civil Air Transport, Sandline International156 and Executive Outcomes.157 (iv) Foreign Volunteers These are foreign soldiers employed in regular, state formations rather than foreign units. They include Commonwealth volunteers in the British Army, foreign Jews in the Israeli Army; volunteers who served in the Rhodesian Army in the 1970s; and British volunteers in the militaries of the Sultanates of Oman and Brunei. (v) Freebooters This is the illegitimate end of the trade. Freebooters do not necessarily work for governments and their employers are likely to include organised crime or criminalised rebellions. They may also conduct criminal operations for their own gain. Examples include Costas Georgiou and other British mercenaries hastily recruited to work in Angola during the 1970s;158 the Israeli Yair Klein, who allegedly trained both narco-gangsters in Colombia and the criminalised Revolutionary United Front in Sierra Leone;159 and various adventurers under the command of Colonel Bob Denard, who several times wreaked havoc in the Comoro Islands.160


(b) Non-Combat Services (i)

Military Train-and-Equip Companies Davis terms these other companies purveyors of ‘military security services’. A helpful description to distinguish them (which is not Davis’s term) is military ‘train-and-equip’ companies. These entities provide military consulting, training and support excluding a commitment to engage in combat. They carry out staff training for air, ground and sea operations; supply arms and offer planning and force development programs; train forces in modern electronic, intelligence and logistics operations; and are able to co-ordinate training of units on the ground in combined arms to enhance their effectiveness. American examples include Military Professional Resources Inc (MPRI),161 Betac,162 DynCorp,163 Booze-Allen & Hamilton,164 SAIC International165 and Vinnell. In Britain in 2005 a wave of privatised training on land, sea and military aviation was expected to be worth UK£20 billion.166 Familiar and less well known bidders include MC3, Metrix, KBR/ LearSiegler, Lockheed Martin and Thales.

(ii) Civilian Security Services Companies A second type of company which is neither a private military company nor a military train-and-equip company is what Davis terms a ‘civilian security services’ company.167 These generally provide travel security for executives, supply corporate intelligence and analysis; and conduct corporate fraud and forensic investigations. Some advise on kidnap and ransom negotiation. Others provide personal bodyguards and asset protection services. Examples include Globe Risk,168 Control Risk,169 several arms of KPMG170 and DynCorp.171 Some American firms in the civilian security market have grown rapidly – notably Blackwater172 and Triple Canopy.173 Both have been successful in personnel and asset protection in Iraq since the US invasion. The growing paramilitary capability of some of these firms and Blackwater in particular has caused their categorisation to seem increasingly less certain. (iii) Logistic Support Companies These companies are not directly involved in combat functions and so form no part of Davis’s model. They are included because of their rising importance in support of military oper-


ations. Logistic support companies have grown to the point where many militaries and the US in particular cannot sustain campaigns without them. They build barracks and roads, feed troops, deliver fuel, remove rubbish and carry out those administrative and other tasks that allow troops to be effectively deployed for more warlike purposes. The leading example in Iraq is the past Halliburton subsidiary KBR.174 Another is DynCorp.175 Smaller US logistics companies include Pacific Architects and Engineers (PAE)176 – recently purchased by Lockheed Martin – and International Charter Inc (ICI).177 Companies involved in military construction and engineering include Parsons Corp,178 Fluor179 and Bechtel.180 (iv) Technical Support Companies Another category of companies delivers a range of services in which technical expertise is prominent. ManTech181 provides information technology. Global Risk International182 delivers electronic counter-measures. EOD Technology183 removes unexploded ordnance while both DynCorp and EG & G184 carry out maintenance and repair of military aircraft. Some interrogation in Iraq has been conducted by CACI185 and L-3 subsidiary TITAN, which also carries out language, translation and interpreter services.186 Other L-3 subsidiaries operate reconnaissance systems. Airscan187 provides specialist airborne imagery and surveillance while Aegis188 deploys the technology required to co-ordinate reconstruction security in Iraq.

3.7

An advocate’s case

The case for a privatised adjunct in support of peacekeeping operations may be summarised in a dozen reasons. Some directly address those arguments for states’ resistance to ad hoc donation listed in the Introduction. First, states tend to inhibit the vigour of even the most disciplined and well-equipped peacekeeping contingents through the attachment of operational directives. These directives enable governments to retain a measure of control, limiting the tasks which troops may carry out consistent with the aims and interests of the sending state. Whether overt or covert, these are potentially obstructive. This is why commanders of peacekeeping operations face notoriously difficult negotiations with subordinate contingent commanders.189 It follows that a UN commander does not issue an order in the conventional mil-


itary sense. A contentious request is likely to be sent to a foreign capital for evaluation (consistent with operational directives) before a contingent commander either consents or declines to follow it. This is damaging to unity of command and demonstrates a fractured of unity of purpose as a military commander has to first ascertain what a contingent commander is prepared to do before asking for a particular task to be carried out.190 But a contract force would be much less likely to face manipulation as a result of this type of interstate competition. In a contract unit the troops would be entirely volunteers subject to unified command. Moreover, they would be motivated to attempt to fulfil their mandate in order to receive bonuses or other incentives. A second argument is that few governments wish to risk the lives of their military forces where national interests are not directly at issue. Contractors’ lives could be risked where the consequences would be less politically sensitive. No state would have sent them (although states could in theory covertly do so for uncertain purposes.) Voluntary enlistment is a considerable advantage, especially where the risk of casualties grows in dangerous operations, those that unexpectedly become hazardous and certainly during any humanitarian intervention. The nationality of soldiers in a corporate unit would remain more or less anonymous, much like those in the French Foreign Legion. For the same reason, those awaiting deployment would promote no state’s interest apart from the collective interests embodied in a Security Council mandate. This is something likely to ease the path to authorisation. Political leaders are likely to welcome reduced risks to their more personal interests. They wish to avoid unfavourable media coverage of their nationals and particularly those engaged in unsavoury violence or sexual misconduct. This is a concern not because it is tawdry, but because peacekeeping is electorally sensitive. Any Prime Minister or President would be embarrassed by a mission in which their citizens are repeatedly portrayed by an unsympathetic media as thugs and sexual deviants; or where their nationals might be identified during warfare’s more grisly moments. But through the partisan eye of a journalist’s camera, no contractor would be identified by nationality. A contract employee may well be photographed misbehaving or for that matter, in distress, wounded or deceased. But an electorate is less likely to blame its elected representatives for financing a peacekeeping operation where violence affects personnel of uncertain and mostly foreign origin. Corporate soldiers may or may not be fellow nationals.


For a politician this is preferable to contemplating the degree of unstable public approval necessary to sustain an ad hoc deployment. Another reason is the assistance the United States may be encouraged to contribute. Since the Clinton Administration and the unhappy results of UNOSOM II, the US has been wary of UN operations, particularly where American casualties are likely.191 Even so, a decade ago military researchers in the US canvassed the possibility of conducting operations with friendly PMCs.192 The climate has since altered dramatically and the US agenda is now dominated by terrorism and two wars. But this does not necessarily spell the indefinite cessation of US support for UN peace operations. US warfighting doctrine altered fundamentally during the Iraq campaign and eventually elevated reconstruction operations to be a core part of US military doctrine.193 Leading American strategists now believe that a strong peacekeeping capability would ‘…buy more time to address the underlying causes of that instability’ [upon which terrorism thrives].194 This argument enjoys currency among those who believe that terrorist threats to the US will be diminished if the Americans assist ‘full spectrum’ operations which advance post-conflict public security.195 It seems reasonable to suggest that the US may become sympathetic to a UN contractor should the Americans believe that more effective deployments would serve US interests at least as much as those of the collective UN membership. Contractors could also bring fresh strengths to international diplomacy when an operation is in trouble. Ad hoc troops donated from past colonial masters may arouse indigenous hostility. Contract troops of mixed origin are less likely to have this effect. Moreover, by paying for contractors, states would purchase a pleasing sense of distance from an unexpectedly unstable or escalating conflict. They could not benefit from this if their own troops were involved. There could also be more freedom for a state to consider a Security Council mandate on its merits, unencumbered by the requirement to weigh risks in sending its own troops to volatile regions. Politicians could then more objectively face the two problems which a deteriorating situation is likely to present: revising a fragile and precariously dated UN mandate; and/or making practical decisions as to what to do in the face of unanticipated violence. Many politicians will recall unpleasant consequences arising from an imprudently ambitious mandate for UNOSOM II in an already hazardous situation.196 Pulling out a contractor would at least carry fewer diplomatic consequences than removing multiple states’ contingents along with their bruised prestige.


Another strength would be multiple organisational improvements. There would be a single doctrine, language and training, the latter specialised for the work that peacekeepers and intervention troops would carry out. Simulation and scenario planning could be devised for the kind of environments in which the troops would be likely to find themselves. Contractors would consequently be more familiar with the nature of their missions than those troops who presently make up the bulk of peacekeepers. Standardised systems of supply and maintenance could end variations in logistic capability. Uniform types of armour, artillery and infantry equipment would remove many of the problems of current incompatibility. In particular, uniform signalling equipment throughout the unit would ensure that command, control, communications and intelligence would be conveyed more effectively than has sometimes been the case in the past. A tender would specify the type and nature of capabilities sought, a tenderer’s response subsequently evaluated by a new entity titled the ‘UN Directorate for Military Contracting’.197 To be classified as competent to undertake tasks matching purported capabilities, contractors would meet industry best practice standards as far as possible. If successful, an applicant would be licensed and subsequently sent on those operations in which it would be expected to prove proficient. Meeting rigorous criteria prior to participation in some missions – and particularly hazardous operations – would seem highly desirable. Somewhat similar concepts are aired elsewhere from time to time. A past director of the Australian ‘Army Land Warfare Studies Centre’ in Canberra supported the idea of an international register of accredited private military and security providers for UN service.198 UNTAC Commander General Sanderson suggested to the author that standardised procedures and a UN Inspector-General would be desirable, even under the present ad hoc regime. The UN does not at present appear receptive. The general nonetheless thought it likely that a UN legion or private military company would serve the UN at some point in the future.199 Another virtue of the privatised adjunct is that unlike a permanent legion vulnerable to greater manipulation, contractor management would not conform to pressure for ethnic or nationality quotas.200 In liaison with the UN Directorate for Military Contracting, contractor management would exercise freedom to make discriminating choices when evaluating individual candidates. This will be helpful for two reasons. First, particular religio-ethnic influences have on occasion exerted unhealthy pressures amongst UN peacekeepers and some of


these could be avoided. In early 1994 Mr Boutros-Ghali made it clear how troops holding a political objective and/or from a state that bordered on Yugoslavia would not be accepted in Bosnia.201 Unfortunately, this kind of foresight was not applied to the emplacement of a Moslem Jordanian battalion on the Oecussi enclave during UNTAET’s East Timor operations. The population there was largely Roman Catholic and grave consequences were probably predictable.202 In the future contract troops could be drawn from wherever the most suitable sources are thought to exist for the job at hand, while acknowledging that religio-ethnic issues will never be eliminated altogether. As each mission is likely to dictate requirements for particular forms of knowledge, troops could also be selected because they hold various forms of expertise. For example, some will be proficient in the conduct of operations in jungles, deserts, mountains or very cold environments. Others will be skilled in amphibious or airborne operations. There will be certain medical officers experienced in the prophylaxis and treatment of particular diseases and surgical techniques in the field. Other candidates will hold invaluable familiarity with particular languages, customs, cultures and likely indigenous reaction to foreign intervention. It is noteworthy that this knowledge is increasingly valued in today’s American military doctrine, in which ‘human terrain specialists’ assist in reconstruction operations. Companies hold another advantage over states which have traditionally determined moral conduct in war. Where states’ troops fight, each side is indoctrinated to believe that truth and morality is invested solely in its side. One way of life is usually portrayed as virtuous and the other as typically beyond redemption. Consequently, aside from irregular observance of the laws of war, it is hardly surprising that costly and time consuming brutalities result.203 As Roggeveen argues, it is often fighting ‘evil’ which leads to ethnic cleansing and atrocities.204 Fighting for money and loyalty to a contract legion is much more desirable than fighting for one’s ethnicity, to avenge wrongs committed centuries ago, or in defence of a wounded god. It is not that contractors will be devoid of cruelty and viciousness. Far from it. Paramilitary conduct in Iraq has supplied strong anecdotal evidence of serious shortcomings. But UN contractor violence is likely to be constrained by the new military law described in Chapter 6 and the international humanitarian principles this would embody. A related issue is the vexed one of the ‘military ethic’. It is sometimes suggested by defenders of sovereign forces that suitable ethical convictions are the product of constancy in national military training.205 The


argument holds that lateral recruitment into a small military organisation with short career paths and an uncertain turnover does not provide the constancy required to inculcate principled beliefs. This view is unconvincing. Contractors chosen in a discriminating fashion may possess principled beliefs learned from earlier and lengthy experience in first world armies. On the other hand, the military ethic possessed by states’ troops from Canada, Italy and Belgium did not inhibit them from torturing, raping and killing civilians in Somalia in the early 1990s. There seems little or no reason why fruitful indoctrination could not be inculcated in talented candidates. The alternative is a mix of sovereign troops holding uncertain convictions and deployed through more arbitrary means. The point may be illustrated through example. The ECOMOG force in Sierra Leone was well known for its ill discipline and criminality. The Nigerians in particular were noted for their vicious retaliation towards suspected RUF members and sympathisers.206 In contrast, an adviser to both EO and Sandline has emphasised that the EO force was disciplined and well-behaved.207 Others in the industry stress the absence of delinquent conduct by EO towards civilians, something which critics seemed to fear.208 Some academic opinion corroborated EO’s restraint in relations with the populace,209 while elements of the citizenry expressed respect for the effectiveness of the company.210 EO’s corporate intervention enabled thousands of displaced persons to re-settle in the Kono region, although this may have been an incidental consequence of an extractive agenda.211 It seems that EO also assisted civilian re-settlement while providing security, logistics and intelligence to humanitarian groups.212 One might speculate as to why the company apparently devoted some effort to humanitarian support which was not strictly a military necessity. Zarate suggests this was undertaken with an eye to future legitimacy, something necessary in order to engage new clients and address broader international politics.213 This makes some sense. The British Special Representative to Sierra Leone also suggested to the author that by the 1990s the South Africans saw it in their commercial interests to improve their battlefield adherence to international humanitarian norms.214 Another argument for contractors is the appeal in requesting governments to contribute taxpayers’ treasure rather than their blood. A business solution will be a more attractive impost on UN members where they are asked to contribute money and not lives which might be lost or shattered and thereby represent a political liability at home. A busi-


ness solution for this reason may have a better chance of overcoming domestic disapproval of intervention in a conspicuously vicious struggle. Where the need for help is most dire, history’s lesson is that the will to assist will probably be at its weakest. Consider the reference in the Introduction to Rwanda in 1994. UN Members could probably have stopped much of the mayhem by paying for assistance from a contract brigade. But no state would countenance losing even a few lives to preserve 800,000 strangers.215 To engage contractors is to limit those risks to national prestige and citizens’ lives which accompany the dispatch of sovereign troops. Considerable political and diplomatic capital could also be reaped from a financial contribution to a successful mission. The cost of a PMSC contract should be keenly scrutinised. Logically enough, UN members’ money should be spent in a business-like fashion according to the completion of agreed contractual criteria. Examples arising in a contested humanitarian intervention could include strategically important infrastructure and utilities taken and held; enemy materiel destroyed; particular military commanders or political leaders captured; villages or towns liberated; or completion of other specified tasks within time and on budget. Each of these could trigger performance incentives for soldiers and management. The corollary is that failure would attract specified financial or other penalties through a structure of payment suspension according to a schedule agreed between the parties. In the wake of poor standards of American contracting evident during the recent Iraq invasion and occupation, some of these suggestions may remind the sceptical reader of inflated and unmet corporate claims.216 War is a notoriously uncertain business and any military unit involves formidable fixed costs which would have to be paid for the life of a contract; although the cost of a contract legion could be to some degree balanced against what they actually deliver. Critics will suggest that it is always possible for the costs of a commercial operation to exceed the sums expected.217 This is of course true. And militaries notoriously exceed their budgets. Yet if what is paid delivers mandate objectives because troops and support staff are skilfully led, reliable and not risk-averse, then up to a point the outcome will have been worth the expenditure. Cost in a military context is not necessarily the primary criterion in any case. Deborah Avant observed that in the Iraq campaign genuinely competitive markets and contractor flexibility were sacrificed by the US government in order to preserve reliability and continuity of service.218 There is a balance to be


struck. In the alternative it is possible that states’ troops may be found in time to justify a mission’s purposes. But if their deployment does not prove effective for familiar reasons, they will not have been worth the money and effort whatever the figure involved. And the chances of success for an ad hoc deployment would seem relatively higher if supported by a professional military contractor. Another strength is contractor versatility. Specialist airlift, sealift and land transport companies could assist the DPKO more thoroughly in its logistic tail. Construction is another area where there could be expansion: temporary or more robust roads and bridges, airstrips and hangars, jetties, accommodation, warehouses and ordnance dumps. Catering, rubbish removal and cleaning, postal services, perimeter defence, medical support and evacuation are other candidates. Inroads could also be made in outsourced computer support, document management and record keeping. A politically sensitive area in which UN contractors might also encroach is work which NGO and humanitarian groups presently perform. The considerable advantage would be an absence of NGO insistence on freedom from institutional control, maintenance of political neutrality and stoutly independent management. Many NGOs are suspicious of attempts to drive them in a particular direction which might compromise their neutrality in the eyes of others.219 A UN agent would instead be bound by explicit contractual obligations and the mandate under which it would operate. This would bind it to effective UN planning so the company could get on with its tasks while tied to clear lines of principal/agent authority. Medical aid is one example. The British Director-General of Army Medical Services in 2006 told the author he saw the age of the corporate humanitarian actor fast approaching. General Hawley believes contractual obligations held by a sending government and a company will appeal to government ministers because of the accountability and control they offer.220 The UN position is not necessarily different. Instead of negotiating with states or NGOs over these resources, the UN could purchase similar services with superior control and accountability built into the bargain. Militarised medical support would in any case be an integral facet of a contractor legion. An expanded humanitarian relief role for contract medical services could take form in manmade or naturally occurring disasters. Related aspects like power generation, communications, food and water supplies could also be delivered with security built into a task order. Another promising area is expansion in the collection of small arms and light weapons (SALW). This is one element of ‘disarmament,


de-mobilisation and re-integration’ programs (DDR) which are in turn a part of ‘security sector reform’ (SSR). When advanced states’ national capacities are insufficient or unavailable, this is another task the UN could countenance for corporate contractors. To first-world troops this assistance is frequently unwelcome as they consider it peripheral to their key purposes. Time spent on rotations by soldiers unfamiliar with a region is also likely to be unhelpfully brief – perhaps six months or so.221 This is understandable as states are wary of lengthy encumbrances. By contrast, companies would welcome the steady revenue that longer term contracts provide. Their employees could be stationed in-country for lengthy periods as part of an overall plan lasting years.222 For this reason, company ex-soldiers could be deployed because they hold prior military experience with a particular people and their culture. For example, suitable ex-NATO military could carry out these tasks while an absence of foreign uniforms would be politically desirable. Other SSR programs could be undertaken by contractors competent to retrain personnel from various occupations: police and prison administrators; customs officials; armed forces and coast guards. Nor should transfers stop at skills. There is a case for military technology transfer carried out by corporations rather than governments.223 The corporate approach may also result in a decrease in trafficking of goods and persons: fuel, ammunition, cigarettes, prostitutes and so on. Corrupt practices involving these matters are well known amongst certain UN troops. Many of those responsible are also subject to unsatisfactory criminal law regimes. By contrast, future crime control over contractors could be assisted by a new UN criminal justice regime, perhaps resembling the model described in Chapter Six and supported by a culture of rigorous behaviour towards internal discipline, treatment of civilians, property, juveniles and proscribed drugs. To that end management would find it in its interests to hire personnel from the better armed forces and to exclude those from the more disreputable militaries. One might consider candidates from units where both morale and military professionalism spring not from unreliable patriotism, but a distinctive esprit de corps. Candidates might include veterans of established mercenary units like the Nepalese Gurkhas or the French Foreign Legion.224 So long as states’ troops are involved in peacekeeping, mandate formation will be bedevilled by the counter-productive machinations of states constantly seeking avoidance of risk. Should a contract force be deployed, some anxieties will remain and in particular, the risk of unexpected changes to mandates. But in peacekeeping and especially


hazardous peacekeeping, state responsibility would no longer be directly attached to operational risk. Tasks would be approached with greater clarity and practicality in mandate formation, impartiality (but not neutrality),225 interposition, rules of engagement and the role of violence more generally. All contract missions would be created under Chapter VII of the Charter. In intrastate conflicts in particular, hindsight has demonstrated the need to provide a future corporate commander with a wide range of options regarding the use of force. Identifiable influences may advance the moment when pressure for change might cause a favourable shift in the UN view of PMSCs. In Sierra Leone the poor performance of UN forces compared to EO was studiously ignored at the time. EO’s professionalism is less easily disregarded today, as critics of private security in both NGOs and the UN find their colleagues attacked by ruthless intrastate belligerents and opportunistic criminals. Of course, the UN and EO missions were quite different. But certain lessons remain. Fitzsimmons helpfully identifies three capabilities exhibited by EO which were necessary for success in operations against the RUF. These attributes are also likely to be required in various UN operations in tomorrow’s intrastate conflicts if these deployments are to be effective: projection of force against belligerents; rapid transport of elements of the intervention force into and within conflict zones; and a commitment to the success of the operation.226 Risks to UN and NGO personnel had risen by the early 1990s in Somalia and there has been a steady escalation since in Africa,227 the Middle East228 and Afghanistan. Low intensity and irregular warfare have evolved and spread while old doctrines of impartiality and neutrality no longer guarantee freedom from robbery, assault, abduction, murder and torture. The ICRC has been a notable casualty.229 A decline in traditional acceptance of the impartiality of aid workers and the spread of cheap small arms have both contributed to a practical necessity to upgrade or create fresh security. Aid workers’ responses have not always been wise or successful. NGOs working in Afghanistan, the DRC, Yemen and Somalia developed a recent habit of hiring security from local warlords. These quasi-contractual arrangements were in reality protection rackets. Pockets of local gangsters were lined to keep their associates from attacking NGO staff and assets.230 Still, in some quarters there has been a re-appraisal of the role of private security and an accompanying acceptance that the welfare of employees is at heightened risk. Both UN agencies and NGOs have to a degree accepted the necessity for better security. CARE, the World Food Program, UNICEF,


USAID, the International Rescue Committee, ICRC and Caritas have all hired private security.231 The industry is in turn becoming more efficiently organised and structured.232 Some firms have humanitarian divisions which tailor packages to aid organisations and their objectives.233 One company has proposed a comprehensive package for a consortium of relief groups in Aceh.234 Another created humanitarian packages on a not-for-profit basis while shrewdly emphasising the firm’s ethical conduct.235 A third supported an entire voter registration and poll exercise in Afghanistan.236 A fourth has a philanthropic arm.237 A fifth secured sympathetic coverage in rightwing American press for work with humanitarian clients.238 The humanitarian field is also sufficiently lucrative to sustain the risk-advisory segment of the industry as well as security providers.239 In other words, there have been advances in crafting a security ‘product’ more adapted to UN and NGO clients. Although loathe to be identified, UN interviewees have responded positively to the very conventional appeal of flexibility, efficiency, reliability and competitive costs.240 The steady expansion of this commerce seems likely to encroach further into UN logistics and security roles. On the other hand, UN and NGO staffs tend to emphasise a clash of cultures even when it is in their interests to foster improved relations with an industry upon which they increasingly rely.241 The result is policy which leaves the UN open to negative publicity and what Cockayne terms ‘strategic incoherence’.242

3.8

Summary

The evidence and description above outline the contours of a case for a corporate adjunct to UN peacekeeping and other operations. They do not provide assurance that a corporate model will actually deliver a superior service with pleasing efficiency at a competitive cost. Nor has the advocate’s rationale been tempered by some of the more sobering empirical observations drawn from contractor performance in recent conflicts. A UN decision to enter the market for military services would be a weighty matter, especially for a purchaser with its mammoth range of current and prospective responsibilities. International commerce is not without its pitfalls, some of which may be placed with dexterity by wily and convincing entrepreneurs. Whilst far from a neophyte, the UN Secretariat would tread new ground in negotiations with PMSCs involving large sums of money while contemplating an industry history of chequered performances. Successful UN engagement


would require thorough research and perceptive judgement. The following chapter contains an effort to inform that judgement. Notes 1

2 3

4

5

6 7 8

9

10

11 12 13 14 15 16 17 18

I.D. Jefferies, ‘Private Military Companies – A Positive Role to Play in Today’s International System’, The Quarterly Journal No. 4 (Dec. 2002) pp. 116–17. A. Mockler, Mercenaries Macdonald & Co (London 1970) p. 16. Eg (and depending upon one’s method of categorisation) Belgian Congo, Indo-China, Algeria, Rhodesia, Malaysia and Kenya. See R.M. Blackburn, Mercenaries and Lyndon Johnson’s ‘More Flags’: The Hiring of Korean, Filipino and Thai Soldiers in the Vietnam War McFarland & Co. Inc. Pub. (North Carolina & London 1994) p. 149. For a polemical case against mercenaries see W. Burchett & D. Roebuck, The Whores of War Penguin Books (Harmondsworth 1977) particularly Part One chs. 1–11. Finer, J., ‘Security Contractors in Iraq Under Scrutiny After Shootings’, Washington Post Foreign Service (10 Sept. 2005) viewed on 21 Dec. 2005 at <www.washingtonpost.com>. C. Tilly, Coercion, Capital and European States, AD 990–1990 (Cambridge/ Basil Blackwell 1990) pp. 68–70. P. Macdonald, Soldiers of Fortune: The Twentieth-Century Mercenary Multimedia Pub (1986) p. 8. J.E. Thomson, Mercenaries, Pirates and Sovereigns. State Building and Extraterritorial Violence in Early Modern Europe Princeton Uni. Press (New Jersey 1994) p. 10. N. Winfield, ‘Vatican Marks 500th Anniversary of Guards’ (21 Jan. 2006) Associated Press Online viewed on 22 Jan 2006 at . Macdonald, Soldiers of… p. 34 and more generally, pp. 40–3. The range of nationalities on the German side included Hungarians, Romanians, Dutch, Norwegians, Indians, Spaniards, Frenchmen, Estonians, Latvians, Lithuanians, Russians and Moslem Croats from Bosnia and Herzegovina. A. Rogers, Someone Else’s War HarperCollins (1998) pp. 219–20. Time, ‘Heading Them Off at the Atoll: Indian Troops Repel an Invasion Force of Foreign Mercenaries’ (Nov. 14 1988) Vol. 132 No. 20 p. 33. Africa News Service, ‘Kabila Hires 400 Korean Mercenaries’ (15 Aug. 2000) p.1008228u3136. Xinhua News Agency, ‘British Mercenaries Allegedly Aid Turks’ (2 Nov. 1999) p. 1008306h0088. K. Whitelaw, ‘Mercenaries Need Not Apply: South Pacific’, US News & World Report Vol. 122 No. 12 (31 March 1997) p. 47. B.J. Kowalski, ‘Yankee Mercenaries’, World Press Review (1 Nov. 1998) p. 21. S. MacSearraigh, ‘Megaoil Staffed with US Mercenaries to Train Azeri Soldiers’, The Oil Daily Vol. 43 No. 246 (28 Dec. 1993) p. 1. Mockler, Mercenaries pp. 68–9; P Singer, Corporate Warriors Cornell Uni Press (Ithaca & London 2003) p. 26.

From Mercenary to UN Contractor? 75 19

20 21 22 23 24

25 26

27 28 29

30

31

32

33 34

35

36 37

38

J.E. Thomson, ‘State Practices, International Norms and the Decline of Mercenarism’, International Studies Quarterly Vol. 34 No. 1 (March 1990) at p. 44. Thomson, ‘State Practices…’ p. 44. Thomson, Mercenaries, Pirates… p. 88. Thomson, Mercenaries, Pirates… p. 88. J. Gooch, Armies in Europe Routledge & Kegan Paul (London 1980) p. 48. T. Barkawi, ‘Democratic States and Societies at War: The Global Context’, in The Comparative Study of Conscription in the Armed Forces Vol. 20 Elsevier Science Ltd (Netherlands 2002) at pp. 366–70. D.M. Kennedy, ‘The Best Army We Can Buy’, New York Times (25 July 2005) viewed on 25 July 2005 at . Personal aptitudes are also likely to play a role – like adaptability, a robust body, a mind suited to military discipline and psychological stability during and after violent experiences and so on. I. Detter, The Law of War 2nd ed Cambridge Uni Press (Cambridge 2000) p. 147. ABC Premium News, ‘Expats Top Exports for Fiji Funds’ (6 April 2005) viewed on 15 June 2006 at . M. Basu, ‘Under a New Flag: Foreign Born GIs Join Fight In Iraq’, Atlanta Journal-Constitution (21 Sept. 2005) p. 1F viewed on 22 Sept. 2005 at . A permanent US resident may serve in the armed forces. Since 2001, over 20,000 have applied for expedited citizenship. See T. Maxwell, ‘2 GIs Savor New Honor: Citizenship’, Chicago Tribune (2 June 2005) viewed on 3 June 2005 at . D. Gillison, ‘Recruiter on Trial for Selling IDs to Enlist Illegals’ (4 Oct. 2005) viewed on 8 Sept. 2005 at ; D. Montgomery, ‘Serving the Country Not Quite Theirs’, Washington Post (13 Nov 2005) p. D1 viewed on 15 Nov 2005 on . K. Ryan, ‘Enhance Force Levels? Look to Immigrants’, Christian Science Monitor (26 July 2006) viewed on 1 Aug. 2006 at . Ryan, ‘Enhance Force Levels …’ M. Thompson, ‘The Fast Track’, Time (7 August 2006) viewed on 1 August 2006 at Thompson referred to Maj-Gen Sean Byne. (Dates of publishing/viewing chronology confirmed.) J. Preston, ‘US Military Will Offer Path to Citizenship’, New York Times (15 Feb. 2009) viewed on 15 Feb. 2009 at . E. Gosch, ‘Kokoda Hero Slams Army ‘Mercenaries’ Plan’, The Australian (8 Sept. 2005) viewed on 8 Sept. 2005 at . BBC Worldwide Monitoring, ‘CIS Servicemen Join Russian Army to Obtain Citizenship’ (17 Aug. 2006) viewed on 21 Aug. 2006 at . D. Gardham, ‘Army Plan to Limit Troops from Commonwealth’, The Telegraph (2 April 2007).

76 Privatising Peace 39 40 41

42 43

44 45

46 47 48 49 50

51 52

53 54

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56 57 58 59

60

P. Tickler: The Modern Mercenary: Dog of War or Soldier of Honour? Patrick Stephens pub (Great Britain 1987) ch. 5; Mockler, Mercenaries p. 18. Mockler, Mercenaries… p. 21. Mail & Guardian, ‘US Lowers Standards in Army Numbers Crisis’ (4 June 2005) viewed on 4 June 2005 at . The President in 2006 ordered involuntary recall of USMC reservists. See K. Roberts, ‘Marine Corps to Start Involuntary Troop Recalls’ (22 Aug. 2006) viewed on 22 Aug. 2006 at . M. Boot, ‘Fighting for Citizenship’, Los Angeles Times (12 April 2006) viewed on 13 April 2006 at . D. Friedman, ‘Pentagon Eyes Civilian Workers For Overseas Posts’, Defense News (23 Oct. 2006) viewed on 24 Oct. 2006 on . D.M. Kennedy, ‘The Best Army We Can Buy’, New York Times (25 July 2005) viewed on 25 July 2005 at . Interview with Lt-Gen Cosgrove Canberra 29 January 2002. General Cosgrove was then Chief of Army and later promoted to Chief of Defence Force (CDF). F. Lewis: ‘Gurkhas Can Solve the UN’s Problem’, The New York Times (8 Feb. 1992) p. L 21. Their pay came in the form of a stipend. See P. Singer, Corporate Warriors… p. 41. Mockler, Mercenaries pp. 18–19. J.R. Davis, Fortune’s Warriors: Private Armies and the New World Order Douglas & McIntyre (Vancouver 2000) p. 38. B. Urquhart, ‘The UN and International Security After the Cold War’, being ch. 3 in A. Roberts & B. Kingsbury (eds), United Nations, Divided World 2nd ed Clarendon Press (Oxford 1993) at p. 94. T. Lynch & A.J. Walsh, ‘The Good Mercenary’, The Journal of Political Philosophy Vol. 8 No. 2 (2000) p. 141. United Nations, Report of the Third Meeting of Experts on Mercenaries UN Commission on Human Rights (18 January 2005) UN Doc. E/CN.4/2005/ 23 para. 16 (hereafter ‘Report of 3rd Meeting of Experts…’) H. Howe, ‘African Private Security’, Conflict Trends (June 2000) p. 23. D. Shearer, ‘Private Military Force and Challenges for the Future’, Cambridge Review of International Affairs Vol. 8 No. 1 (Autumn/Winter 1999) p. 87. IRINnews.org, ‘DRC-Zimbabwe: IRIN Focus on UN Panel Report’ (29 Nov. 2001) viewed on 15 Sept. 2006 at . IRINnews.org, ‘DRC-Zimababwe…’ Howe, ‘African Private…’ p. 23. Shearer, ‘Private Military…’ p. 88. C. Dietrich, ‘The Commercialisation of Military Deployment in Africa’, African Security Review Vol. 9 No. 1 (2000) viewed on 5 June 2006 at . Dietrich, ‘The Commercialisation of…’ p. 8.

From Mercenary to UN Contractor? 77 61 62 63 64

65

66

67 68 69

70

71 72 73

74 75 76 77

78 79 80 81

82

At Art. 47(2)(c). At Art. 1(1)(c). Dietrich, ‘The Commercialisation of…’ p. 10. A. Layeb, ‘The Need for an International Convention Against Mercenaries and Mercenarism’, African Journal of International and Comparative Law Vol. 1 No. 3 (1989) pp. 466–83. J. Selber & K. Jobarteh, ‘From Enemy to Peacemaker: The Role of Private Military Companies in Sub-Saharan Africa’, Medicine & Global Survival Vol. 7 No. 2 (Feb 2002) p. 91. E.G. Berman, ‘Re-Armament in Sierra Leone: One Year After the Lome Peace Agreement’, Small Arms Survey Occasional Series No. 1 (December 2000) at pp. 13–15. J.L. Taulbee, ‘Mercenaries, Private Armies and Security Companies in Contemporary Policy’, International Politics Vol. 37 (Dec 2000) p. 446 & note 76. M. Wesley: Casualties of the New World Order St Martin’s Press (New York 1997) p. 79. Blackburn, Mercenaries and Lyndon Johnson’s…. See Introduction pp. xiii–xiv; also pp. 145–52. Interestingly, the Australians and New Zealanders were not paid mercenaries and exist in a different category. See ch 6. Also Thomson, Mercenaries, Pirates and… p. 94 & note 139. The mercenary label was sometimes applied more dubiously to the Montagnard in Vietnam and the Meo in Laos. Eg, see R. Norton-Taylor, ‘Saudi Arabia Top Buyer of UK Arms’, The Guardian (8 June 2004) viewed on 16 May 2005 at . C. Kinsey, Corporate Soldiers and International Security Routledge (London 2006) p. 16. Gulf News, ‘Oman in Talks with UK for Defence College’ (21 Feb. 2007) viewed on 23 Feb. 2007 at . G. Cleaver, ‘Subcontracting Military Power: The Privatisation of Security in Contemporary Sub-Saharan Africa’, Crime, Law & Social Change Vol. 33 (2000) p. 135. Thomson, Mercenaries, Pirates and… p. 9. Thomson, Mercenaries, Pirates and… p. 8. S. Percy, Mercenaries. The History of a Norm in International Relations OUP (Oxford 2007) p. 119. K. Annan, In Larger Freedom: Towards Development, Security and Human Rights for All UN Doc. A/59/2005 downloaded on PDF file on 29 March 2005 from . See para. 112. Annan, In Larger… para. 213. See also Annex II para. 6(j) and Annex IV para. (j). Annan, In Larger… para. 215. Adams, ‘Private Military Companies…’ p. 61. UNSC. Res. 161 (21 Feb 1961) S/4741 viewed on 30 July 2005 at . On ONUC more generally see viewed on 16 May 2005. J. Gerard-Libois, Katanga Secession Uni of Wisconsin Press (USA 1966) p. 171.

78 Privatising Peace 83 84 85 86 87 88 89

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92 93

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95 96 97

98 99

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Gerard-Libois, Katanga… pp. 155–7 & note 97. Gerard-Libois, Katanga… pp. 155–7 & note 96. Gerard-Libois, Katanga… p. 165. Gerard-Libois, Katanga… p. 219. C.C. O’Brien, To Katanga and Back: A UN Case History Hutchinson (London 1962). Whole of ch. 10. UNSC. Res. 169 (24 November 1961) [S/5002] viewed on 30 July 2005 at . Well before the second resolution Hammarskjöld authorised UN use of force to stop massacres of civilians. He did not consider this to upend his concept of non-intervention. See G. Abi-Saab, The United Nations Operation in the Congo 1960–1964 Oxford Uni Press (Oxford 1978) p. 57 and notes 11 & 12. The S.G.’s representative also closed airports and radio stations. This favoured one side in the struggle, whether wittingly or otherwise. See p. 63. On UN ineptitude see ‘Operation Morthor’ at Abi-Saab, The United Nations… pp. 140–1. On other violence between insurgents and UN forces see pp. 125; 168–72. For a skeptical view of UN use of force, see G. Martelli, Experiment in World Government: An Account of the United Nations Operation in the Congo 1960–1964 Johnson Pub (London 1966). Summary at pp. 237–9. Abi-Saab, The United Nations Operation… p. 168. There remains conjecture that this may have been murder. See R. Dayal, Mission for Hammarskjöld Oxford Uni Press (Oxford 1976) pp. 277–82. S.V. Percy, ‘The Security Council and the Use of Private Force’, being ch. 28 in D. Zaum, A. Roberts, J. Welsh & V. Lowe, The UN Security Council and War O.U.P (Oxford 2008) (early transcript). UN Press Release, SG/SM/6255 (12 June 1997) viewed on 30 April 2006 at . W. Shawcross, Deliver Us From Evil: Warlords and Peacekeepers in a World of Endless Conflict Bloomsbury (London 2000) pp. 122–3. UN Press Release SG/SM/6613/Rev.1 (26 June 1998). See p. 6 of 8 viewed on 9 April 2006 at . Singer, Corporate Warriors… p. 185 & footnote 97. For an explanation of the office of a ‘Special Rapporteur’ see J.A. Moor Jr. & J. Pubantz, The New United Nations. International Organization in the Twenty-First Century Pearson/Prentice Hall (2006) at p. 150. The UN Human Rights Commission first appointed the Special Rapporteur (subsequently named by the Commission Chairman) ‘to examine the question of the use of mercenaries as a means to violate human rights and to impede the exercise of the right of peoples to self-determination’ at the 43rd session of the Commission, Feb. 2–March 13 1987. See UN Chronicle May 1987 Vol. 24 pp. 30 & 31. Mr Ballesteros held the position from 1987 to 2004 and was succeeded by Dr Shaista Shameem in July 2004. See UN Press Release (20 Aug. 2004) viewed on 13 April 2005 at .

From Mercenary to UN Contractor? 79 101

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E.B. Ballesteros, ‘Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self-Determination’, General Assembly 52nd Session Agenda Item 111 A/52/495 16 October 1997 at p. 17 para. 47. He broadened his criticism to include complicit states in 2003. See United Nations Information Service, ‘Broader Legal Definition of “Mercenary” Needed, Says Special Rapporteur, as Third Committee Continues Discussion of Self-Determination, Racism’, GA/SHC/3752 28 Oct. 2003 viewed on 14 Feb. 2009 at . For a contrasting argument of an economic nature, see J. Brauer, ‘An Economic Perspective on Mercenaries, Military Companies and the Privatisation of Force’, Cambridge Review of International Affairs Vol. XIII No. 1 (Autumn–Winter 1999). These being Sierra Leone, Angola, Oman, Croatia and Ethiopia respectively. Sandline also appears to have provided small arms, air support and training to President Kabbah’s deposed but democratically-elected Sierra Leonean government in exile when Kabbah sought power through a counter-coup in 1996. See A. Vines, ‘Mercenaries and the Privatisation of Security in Africa in the 1990s’, in G. Mills & J. Stremlau, The Privatisation of Security in Africa South African Institute of International Affairs (South Africa 1999) at pp. 63–6. Success in Sierra Leone, Angola and Croatia is acknowledged in C. Lehnardt, Regulating the Private Military Sector (Workshop Report) New York University/Institute for International Law and Justice (New York Dec 2006) p. 1. International Convention Against the Recruitment, Use, Financing and Training of Mercenaries GA. Res. 44/34, UN GAOR, 72nd plen mtg, art 1, UN Doc A/RES/44/34 (1989) 29 ILM (1990) 89–97. An anti-mercenaries treaty was urged by the GA. in 1979 in A/Res/34/140 1979. It was decided that an ad hoc committee be formed for this purpose in 1980 in A/Res/35/48 and the resulting treaty entered into force on 20 Oct. 2001. Adams, ‘Private Military Companies…’ p. 62; and remarkably, from a states’ supporter, see Layeb, ‘The Need for and International Convention…’ p. 467. D. Brooks & H. Solomon, ‘From the Editor’s Desk’, Conflict Trends (June 2000) p. 1. J.C. Zarate, ‘The Emergence of a New Dog of War: Private International Security Companies, International Law, and the New World Disorder’, Stanford Journal of International Law Vol. 34 (1998) at note 102. Both the Nigerians and the Biafran secessionists employed mercenaries. The Ukraine is another signatory and was a source of pilots for Executive Outcomes. Zarate, ‘A New Dog…’ p. 133. C. Spearin, ‘Private Security Companies and Humanitarians: A Corporate Solution to Securing Humanitarian Spaces?’, International Peacekeeping Vol. 8 No. 1 (Spring 2001) p. 37. J. Kelly, ‘Safety at a Price: Military Expertise for Sale or Rent’, Pittsburgh Post-Gazette (15 Feb. 2000) viewed on 12 Oct. 2006 at . A. Duffy, ‘SA Mercenaries Working For UN’, Electronic Mail & Guardian Johannesburg (17 July 1998) viewed on 4 Feb. 2002 at p. 1 on .


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E-mail from Neil Ellis at <[email protected]> to (31 May 2004). See also M. Tostevin, ‘Focus – Could Dogs of War Become Doves of Peace?’, viewed 29 May 2002 at . M. Corcoran, ‘Gunship for Hire’, Foreign Correspondent (28 Sept 2000) viewed on 16 Sept. 2005 at . D. Isenberg, ‘Combat For Sale: The New, Post-Cold War Mercenaries’, USA Today Magazine Vol. 128 Iss. 2658 (1 March 2000) viewed on 13 April 2005 at . Kinsey, Corporate Soldiers and… p. 85. S. Brayton, ‘Outsourcing War: Mercenaries and the Privatization of Peacekeeping’, Journal of International Affairs Vol. 55 No. 2 (Spring 2002) p. 319. R.J. Rummel, ‘Power, Genocide and Mass Murder’, Journal of Peace Research Vol. 31 No. 1 (1994) pp. 2–3. Two examples: the tens of millions killed by the sovereign governments of UN member states Maoist China and communist USSR. Charter Art. 2(1). Charter Art. 2(4). Charter Art. 2(7). C. Tilly, ‘War Making and State Making as Organized Crime’, being ch. 5 in P.B. Evans, D. Rueschemeyer & T. Skocpol (eds), Bringing the State Back In CUP (Cambridge 1985) at p. 170. Tilly, ‘War Making and…’ pp. 169–91. E. Ballesteros, ‘Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self-Determination’, UN Report E/CN.4/2004/15 (24 Dec 2003) at paras 29, 30, 57. Ballesteros, ‘Use of Mercenaries…’ (2003) para. 31; see also paras 67, 70. It is interesting that the Third Meeting of the Expert Committee on Mercenaries noted the problem but did not take a posture. See ‘Report of 3rd Meeting of Experts…’ para. 39. See also the problem of legitimacy in the South American context at para. 41. Refer to Glossary for ‘uti possidetis’. Ballesteros, ‘Use of Mercenaries…’ (2003) para. 47 at new definition Article 1(1)(b); 1(2)(b). ‘Report of 3rd Meeting of Experts…’. See Summary p. 1 and paras 64(e) & 79. But the Committee itself appeared confused over the same issue at para. 65 – where they find it illegitimate to topple ‘the constitutional order of a state’… but is this so even if it is a ‘racist’ order? Zarate, ‘A New Dog…’ p. 118 & note 272 citing the 1997 Ballesteros Report at para. 122. Ballesteros, ‘Use of Mercenaries…’ (2003) para. 42. Ballesteros, ‘Use of Mercenaries…’ (2003) para. 43(a). Ballesteros, ‘Use of Mercenaries…’ (2003) para. 43(i). Ballesteros, ‘Use of Mercenaries…’ (2003) para. 47 at new definition Article 3(1); and para 66. The Working Group was established in July 2005 pursuant to Resolution 2005/2 (7 April 2005) issued by the Commission on Human Rights. The


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Group succeeds the mandate of the Special Rapporteur on the use of mercenaries. That office had been in existence since 1987 and had been occupied by Mr. Enrique Bernales Ballesteros (Peru) from 1987 to 2004; and Ms. Shaista Shameem (Fiji) from 2004 to 2005. For an example of the Working Group output see the Report of the Working Group on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of People to Self-Determination UN Commission on Human Rights Doc E/CN.4/2006/11 Advance Edited Version (23 Dec. 2005). A valuable insight lies in UN assistance in putting down the Katangese secessionists in the Congo. Contrast acquiescence to the West Papuans’ oppression by Indonesians in the 1960s; the Biafrans by the Nigerians; Basques by the Spanish; the Roman Catholics by British Ulster Protestants; and the Uighurs and Tibetans by the Han Chinese. Revealingly, the Working Group noted the problem of Croat self-determination in a fracturing Yugoslavia and the tension this caused with the uti possidetis principle. On this the Working Group was not required to take a position. See the Report of the Third Meeting of the Expert Committee on Mercenaries, Commission on Human Rights. Doc E/CN.4/2005/23 (18 January 2005) at para 39. See the UNHCR site viewed on 7 Sept. 2006 at . Human Rights Watch, Libya: Rights at Risk (2 Sept. 2008) viewed on 12 Feb. 2009 at at p. 1. OHCR/COHR, Human Rights Resolution 2005/2… at para. 5. See also paras 12(e), 17 & 22(e). ‘Report of 3rd Meeting of Experts…’ Introduction para. 3. For a list of the newer members see Uni of Essex Human Rights Centre web page viewed 1 Sept. 2005 at . See ‘Report of 3rd Meeting of Experts…’ at Section XII: Recommendations para. 98/2nd last item. The International Peace Operations Association (or IPOA) is based in Washington DC. The British Association of Private Security Companies (BAPSC) is based in London. On UN agencies’ hostility see H. Wulf, Internationalizing and Privatizing War and Peace Palgrave Macmillan (Hampshire UK 2005) pp. 145–6. Report of 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/Regional Consultation for Latin America and the Caribbean on the Impact of the Activities of Private Military and Security Companies in the Enjoyment of Human Rights: Regulation and Monitoring (17–18 December 2007) A/HRC/77/Add.5. p. 8. S. Shameem, Report of the Special Rapporteur of the Commission on Human Rights 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 (Aug. 2005). See OHCHR Human Rights Documents at


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. Synopsis viewed on 3 Dec. 2005 at . Office of the High Commissioner for Human Rights/Commission on Human Rights, Human Rights Resolution 2005/2, ‘The Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self-Determination’ 38th meeting 7 April 2005 at para. 11. Dr. Shameem was replaced by a Working Group of five Independent Experts for a three year period. The mandate for the Special Rapporteur was concluded at the 61st session of the Commission on Human Rights. S. Shameem, ‘Statement By Ms Shaista Shameem’, 61st Session of the Commission on Human Rights, Geneva (18 March 2005) viewed on 12 April 2005 at <www.unchr.info/61st/docs/ 0318-Item5-SR%20 Mercenaries.pdf>. This was a step acknowledged by the ex CEO of Sandline International several years ago. See ‘An Interview with Lt. Col. Tim Spicer’, Cambridge Review of International Affairs (Autumn–Winter 1999) Vol. XIII No. 1 at p. 170. H. Cummins, ‘Perception and Profit: Understanding Commercial Military and Security Service Provision’, Discussion Paper/Seminar of 24 June 2002, Centre for Studies in Security and Diplomacy, University of Birmingham p. 2. Cummins, ‘Perception and…’ p. 2. ISRIA Information, ‘UNOG: UN Expert Group Considers New Legal Instruments for Regulation of Private Military and Security Companies’ (27 March 2009) viewed on on 29 March 2009. Eg, Wulf, Internationalizing and Privatizing… ch. 2; R. Mandel, Armies Without States. The Privatization of Security Lynne Rienner (Boulder Colorado 2002) ch. 5; Kinsey, Corporate Soldiers and… ch. 1; Singer, Corporate Warriors ch. 6. Davis, Fortune’s Warriors… pp. 68–9. This is a point made recently by Kevin O’Brien. See K.A. O’Brien, ‘What Future, Privatized Military and Security Activities? The Need for Pragmatic Engagement’, Royal United Services Institute Journal Vol. 152 No. 2 (April 2007) at p. 58. The Nepalis have served others since 1815, beginning in the British East India Company in that year and continuing with the British government from 1816 through the Treaty with the Rajah of Nepaul – Segowley, 1815, 4 BFSP p. 255. For the basis of present Nepalese service in the UK and Indian armies see the Kathmandu Agreement – National Archive: India Office and Foreign Office/Embassy, Kathmandu Nepal/General Correspondence F.O. 766/26 1947. Thomson, Mercenaries, Pirates and… p. 90. Thomson compares Pakistan in the Middle East with Switzerland in 17th Century Europe at p. 93. For a more extensive list of foreign recruitment, see Thomson, Mercenaries, Pirates and… at table 4.6 on p. 92. It is noteworthy that at the Battle of Waterloo Wellington’s army of 60,000 was comprised of 40,000 foreigners. See Davis, Fortune’s Warriors… p. 38. Until the 1860s the Company often held more men under arms than the whole British military and ran its own officer training school in England.

From Mercenary to UN Contractor? 83 Davis, Fortune’s Warriors… pp. 41–2. One should also note that the company was closely tied to the British state through a government Board of Control. 156 Sandline had an extensive website at viewed 31 May 2005; see also Vines, ‘Mercenaries and the Privatisation of…’ pp. 56–66. 157 Davis, Fortune’s Warriors… chs. 6 & 7 in particular; Shearer, ‘Private Armies…’ pp. 39–55; D. Isenberg, Soldiers of Fortune Ltd: A Profile of Today’s Private Sector Corporate Mercenary Firms Center for Defense Information Monograph (Nov. 1997) pp. 6–10. For a more disparaging view see Vines, ‘Mercenaries and the Privatisation of…’ pp. 50–6. EO ceased operations in Dec. 1998. 158 Eg, Kinsey, Corporate Soldiers… pp. 49–50. 159 K. Silverstein, Private Warriors Verso Books (London 2000) p. 161; P. Singer, Corporate Warriors…/ Cornell Uni. Press p. 220. 160 G. Dyer, ‘Comoro Islands’, being pp. 124–5 in J. Keegan, World Armies 2nd ed. Macmillan (London 1983). 161 Davis, Fortune’s Warriors… pp. 108–13; also viewed on 31 May 2005; Isenberg, ‘Soldiers of Fortune…’ pp. 14–16; Shearer, ‘Private Armies…’ pp. 56–63. 162 See K. Silverstein: ‘Privatizing War’, The Nation (28 July 1997) viewed on 29 Sept. 2005 at pp. 7–8. 163 Davis, Fortune’s Warriors… and viewed on 13 Feb 2007. 164 See Silverstein, ‘Privatizing War…’ p. 6 and website at viewed on 31 May 2005. 165 Shearer, ‘Private Armies…’ pp. 34–5 and viewed on 31 May 2005. 166 A. Chuter, ‘Private Consortia Vie for UK Military Training Packages’, Defense News (17 Oct. 2005) viewed on 20 Oct. 2005 at . 167 Davis, Fortune’s Warriors… chs. 2 & 4. 168 viewed on 31 May 2005. 169 viewed on 31 May 2005. 170 viewed on 31 May 2005. 171 Afghan President Hamid Karzai’s bodyguard was for some time a DynCorp unit. 172 viewed 3 April 2005. 173 viewed on 3 April 2005. 174 viewed on 23 June 2006 (later a separate company.) 175 viewed on 23 June 2006. 176 viewed on 23 June 2006. 177 viewed on 23 June 2006. 178 viewed on 12 Oct. 2006. 179 viewed on 16 Oct. 2006. 180 viewed on 12 Oct. 2006. 181 viewed on 23 June 2006.


185 186 187 188 189 190 191

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viewed on 23 June 2006. viewed on 23 June 2006. viewed on 23 June 2006. EG & G is a division of URS Corporation viewed on 23 June 2006. viewed on 23 June 2006. viewed on 23 June 2006. viewed on 23 June 2006. viewed on 23 June 2006. H. McCoubrey & J. Morris, Regional Peacekeeping in the Post-Cold War Era Kluwer Law (The Hague, Netherlands 2000) p. 42. Interview with Australian Maj-Gen. Roger Powell Canberra 29 January 2002. See the criteria President Clinton approved in his Presidential Decision Directive 25 at US Dept of State Publication 10161 (May 1994) reproduced at . D.S. Vaught, Modern Mercenaries of the Twenty-First Century: Professional Military Consultants – A Modern Tool of Foreign Policy Naval War College (Newport USA 5 Feb 1999) pp. 1–17. See . Stability Operations FM 3-07 (Oct. 2008) HQ Dept. of the Army viewed on 13 Feb. 2009 at . C. Kinsey, ‘Examining the Organisational Structure of UK Private Security Companies’, Journal of Defence Studies Vol. 5 No. 2 (June 2005). Note his organisational chart of a private security company as a ‘divisionalised organization’. Kinsey, ‘Examining the Organisational…’ p. 205. This was Control Risks. See J. Cockayne, Commercial Security in Humanitarian and Post-Conflict Settings: An Exploratory Study International Peace Academy (New York March 2006) p. 8. Blue Sky Group Foundation, ‘The Growing Threat to Charities Working Abroad’, viewed on 7 May 2006 at . Global Strategies Group website at ‘Development Strategies’, viewed on 11 May 2006 at . Aegis Foundation viewed on 7 May 2005 at . This was Olive Group. See B. Baschuk, ‘Consultant Offers Help to Aid Workers’, The Washington Times (25 December 2006) viewed on 15 Feb. 2007 at . See ‘Control Risks’ ‘humanitarian sector’ web page viewed 28 Feb. 2007 at . Cockayne, Commercial Security… p. 5. More co-operation would allow aid groups to identify where they could improve their effectiveness by exploiting the strengths of private security – in intelligence collection, threat analyses and logistic efficiency, for example. Cockayne, Commercial Security… p. iii and his note 37 at p. 10.

4 The Public-Private Security Environment

4.1

Introduction

This chapter examines some of the risks the UN is likely to countenance should it pay corporate agents to assist in peacekeeping and other operations on its behalf. In the business of conflict some private capabilities have outperformed public resources. Some have resulted in partial successes and there have been some failures. The expression ‘public-private security environment’ denotes a setting inhabited by providers who assess their merits to some degree against the performance of one another.1 This implies a certain friction accompanying the supply of private sector services to government, business and a widening niche in inter-governmental and non-governmental organisations. The following section canvasses the lengthy collaboration in violent enterprises between states and business. Mutual co-operation stretches back centuries, accompanied by constant and occasionally ruinous tensions. The third section analyses reasons for the move away from selfsufficiency amongst armed forces and towards the adoption of corporate support. Some of the more public successes and failures are identified along with areas likely to witness further expansion. The fourth section distinguishes corporate from state interests as private influence expands steadily within the public realm. These interests are sometimes confused and conflated. The fifth section on UN issues refers to problems likely to arise from closer relations between the parties. These obstacles would take the form of anticipated and unforeseen risks, costs and industrial tensions. The sixth section provides observations on the effects of recent and far-reaching US government policy changes. Some will assist the industry. Others will intrude into traditional UN peacekeeping. The seventh section canvasses moral hazards, something that will require an effective approach if the UN is to improve its reputation. The eighth section exam88

The Public-Private Security Environment 89

ines plausible reasons that may tempt UN members to sabotage the outsourcing option. Perhaps unexpectedly, several states could suffer a rise in security related risks should they tolerate the formation of a UN contract legion. Section nine contains a reflection on UN institutional culture and probable resistance to PMSCs that attempt to work in an unfamiliar UN domain. The conclusion summarises these issues before reference to further scrutiny of the industry in the following chapter.

4.2

History old and new

When Janice Thomson described the transition from heteronomy to sovereignty during the seventeenth century, she referred to change characterised by new means of organising ‘global coercive resources’.2 These included delegated authority to apply violence in the name of the sovereign. For well over 250 years, mercantile companies empowered by sovereign charters wielded force in the pursuit of profit. They were not eclipsed by succeeding developments until the nineteenth century. States no longer authorise private corporations to annex foreign territory.3 Nor does anything resembling or analogous to the chartered companies survive today. Modern military corporations of the present have been infrequent and much smaller actors. They rarely provide formations large enough to fight on their own and have generally trained and sometimes led others. Yet where the interests of states and businesses prove compatible, familiar forms of co-operation have emerged which at least echo traits which characterised an era long past. When a new generation of private military interests was being formed around 1990 Thomson posed a prescient notion: if changes in the nature of war caused the decline of mercenarism, subsequent changes could lead to its revival.4 Mercenarism’s resurgence had arguably more to do with changes in economics and the evolution of the state. Nevertheless, her general train of thought presaged shifts which have driven a revival exhibiting both old and new characteristics. Perhaps most surprising is that the authority transferred to privateers by European sovereigns in the seventeenth century has taken form in a new and unexpected avatar. This occurred when President Bush invited privateers to assist the US government in its war on terror.5 Here was a very public rejuvenation of an old form of non-state license in the use of violence. As Robert Mandel put it: For the most militarily dominant nation in the world to seek the aid of private security providers in confronting a direct threat from


abroad is truly noteworthy, reinforcing both the limits on state power and the potential potency of nonstate coercion.6 This shift has been supported by an American approach of deliberately limiting governance of the new corporate players in international military affairs just as home state governments did three centuries ago. Employees of DynCorp, CACI, TITAN and others have been implicated in torture, other forms of aggravated assault, sexual assault, bribery and various other nefarious acts. Yet the US government has evinced remarkably limited interest in developing effective legal means to draw those concerned and their US employers to account. Attempts to utilise existing law during the Iraq occupation have been less than vigorous.7 In other words, powerful governments of both the past and the present have found it expedient to keep some distance from the operations of companies where these firms exercise (or misuse) coercion or violence on their behalf. Greater importance has been attached to burden shifting than effective governance. Burdens involving high risk and high return have sometimes taken the form of monopolies. These hold an enduring appeal for business in any age. An association of seventeenth century merchants would not have accepted the risks inherent in an overseas expedition without an enforceable assurance that others would not benefit from their efforts.8 This is a prospect the boards of modern corporations might imagine with wistful envy, including those that actually hold monopolies. Nonetheless, whether in the past or the present, monopolies carry recurring hazards. Management of several chartered companies of the mercantile era exhibited a pervasive tendency to confuse their interests with those of their governments. Modern critics of US firm Halliburton and its then subsidiary KBR suggests that management has conducted itself in a similar fashion, with lucrative if contentious consequences.9 Corruption within the monopolistic English ‘East India Company’ in the eighteenth century proved a considerable problem;10 and a similar weakness contributed to the eventual collapse of its Dutch competitor.11 It is noteworthy that corruption and questionable clarity over the US national interest have been commonplace during the Iraq reconstruction effort.12 Demonstrating fealty to a sovereign in return for an opportunity to secure material advantage is a familiar principle which has regularly involved the infliction of violence. The English East India Company’s Charter of 1661 supplied it with a right of territory and the authority to wage war against non-Christian peoples.13 Exercising these prerogatives


during the early life of the Company involved sensitivity to the necessity for regular renewal of its charter. This required the active cultivation of a favourable relationship with government. Today’s train-and-equip firms do not fight for advantage in a similar fashion. Today they train others with the permission of their government in return for financial gain. The remuneration is usually supplied by either the US taxpayer or a client state. If MPRI, Vinnell, DynCorp, SAIC or Booz-Allen & Hamilton are to earn profits by training non-Americans overseas, they are required to provide the Administration of the day with a politically convincing case. As a former US Defense Intelligence Agency official put it when discussing foreign training programs: ‘If the government doesn’t sanction it, the companies don’t do it’.14 It may seem superfluous to add that like all governments, the present Administration will sanction that which it believes will serve its interests.15 Similarly, the rise of the English merchants was regulated by the crown to serve sovereign interests. The principal means was the extraction of money from the chartered companies in exchange for privileges.16 The contemporary situation again exhibits differences and similarities. What is similar is that in the American case US interests as interpreted by its administration are argued in support of both outsourcing and privatisation. A difference is that today the US taxpayer usually subsidises payments to these firms in return for corporate support of US policies.17 As one might expect, the twenty-first century environment for sovereign patronage is more mature than the age of the merchant empires. There is significance here for the UN. In the pursuit of profit a corporation based in a powerful state is almost certain to meet political obligations in various forms. There can be no certainty that these requirements will be compatible with a Security Council mandate and an agency contract.

4.3

The rise of private authority

Since the late seventeenth century it has been widely accepted that states may in part be defined by their claim to a monopoly on legitimate violence.18 National defence and civil order have driven the creation of military budgets that have absorbed less than 1 per cent to something like 30 per cent of GNP in almost all states since 1945.19 The need for stability within states also provides the impetus for much funding of police and domestic intelligence agencies. The prerogative of legitimate violence has in turn informed tenets of international law regarding criteria for statehood, one of which is the existence of


government.20 And it has been states’ fundamentally coercive attributes which have often figured most prominently in their dealings with other states.21 The exact nature of this situation has never been static. Today, private authority carrying an element of coercion is again expanding and challenging traditional notions of conduct both within and between states.22 Hitherto military functions of the state are increasingly being transferred to non-state entities.23 This is consistent with a decreasing political will amongst both wealthy and poor states to sustain those financial and other costs embodied in the maintenance of a monopoly on the use of violence. However, one should be unhurried in drawing exaggerated meaning from a shift in responsibilities. A state monopoly on violence may no longer exist, but the authority to legitimise its use remains with states and the UN in certain circumstances.24 It is the legitimate exercise of this function which is arguably in the process of devolution from governments to others. This delegation does not suggest state authority is facing extinction.25 State roles are being altered, re-configured or contracted out in a continual transformation that should not be unexpected.26 Outsourcing a capacity to wield violence is only one facet of a more general phenomenon. Spear suggests that privatisation may be seen in modern states as indispensable in achieving the ‘lean’ condition thought desirable for armed forces.27 Herbert Wulf has been quick to see that neo-liberal searches for costeffective and market-based solutions are also created by the powerful and imposed on the weak.28 This creates a different kind of lean state with more contentious results. For example, an African government fighting an insurgency while appealing for Western military aid may find it difficult to meet prescribed standards of democratic governance demanded by a potential donor. The beleaguered government might never have enjoyed a complete monopoly over the use of force within its borders. Moreover, a coercive IMF structural adjustment program may dictate limits to its military budget in pursuit of neo-liberal reform.29 Western commentators will be quick to judge a hard-pressed cabinet that considers contract assistance in return for concessions to exploit extractive resources. But is this very different to the suggestion that US oil corporations stabilise African states by paying US led contract battalions – as some American journalists suggest?30 The oil corporations would spend money in their shareholders’ interests much like directors of a PMC who may also seek extractive wealth. Such ideas become abruptly palatable in the US when the prospective beneficiaries of


violence are American companies and consumers. In both scenarios states are driven to adapt to the demands of neo-liberal economics by relying on an expanding international market in military services. In doing so, Lawrence Serewicz suggests that states utilise globalising forces to address newer internal and external challenges.31 Some succeed. Others – and especially in Africa – may not. Harnessing these globalising forces is consistent with a larger movement in economics over the last several decades. Political parties today promise more efficient delivery of various public goods and these include national security. In a Keynesian era this was thought to be a settled public responsibility but national security is now no less contested than other areas of public expenditure.32 Should the necessary resources be diverted elsewhere, this creates unpleasant implications for unfortunate populations in troubled states. The UN view seems to be that improved stability for these populations carries a collective or global benefit. Yet the concept of rights to particular standards of existence as embodied in various treaties is highly problematical. This is because there are generally no corresponding rights to compel stable and wealthy states to provide resources to meet these standards as other states disintegrate. Assistance to desperate people remains almost entirely reliant upon the goodwill and co-operation of other states. Irregular payments of mandatory assessments to the UN are in part directed to interstate betterment. But this is hardly adequate. Pressures for outsourcing are well known. Within NATO and exWarsaw Pact members there developed an understandable demand for cuts in defence spending after the Cold War. Consequently, large numbers of well-trained service personnel from both East and West were retrenched or faced early retirement.33 Militaries on both sides shrank by perhaps five million.34 This occurred at a time when training professionals in modern warfare was becoming steadily more expensive as the ‘revolution in military affairs’ took hold in advanced states.35 Prior to the ‘RMA’, civilian engineers and technicians had maintained weapons systems. The sophistication of these systems then evolved to a point where skilled civilians are now required to operate them as well. Meanwhile, the third world’s strategic value to the West plummeted in the wake of the Cold War, while intrastate violence and disintegration became increasingly prominent amongst those same third world states and in particular on the African continent. At about the same time peacekeeping debacles in Somalia and Rwanda drove Western donors to disengage, especially in Africa. And last, outsourcing


found an increasingly receptive government audience where the ideology of privatisation flourished. Some of these changes account for those budget pressures Elke Krahmann identifies as one of the causes of the privatisation of functions once considered the exclusive preserve of a state’s armed forces.36 Corporations were also changing. They became more mobile when no longer hindered by Cold War constraints and achieved greater efficiency through advances in commercial information technology. Most significantly, they discovered access to a pool of military labour supplied from literally around the world. The US became the pre-eminent outsourcer of military related functions and today it has never been militarily stronger.37 The Republicans’ deliberately structured their war and occupation of Iraq so that the American presence became heavily dependent on the entrenched use of private security and US logistics companies.38 Few modern militaries are unaffected to some degree by similar changes.39 A less desirable objective has been the ‘democratic deficit’ arising from the shift in power from the legislature to executive government. If an American President wishes to involve the US in an armed conflict this has become easier because of the availability of contract forces which lessen pressure to deal with a legislature that may be unsympathetic. By encouraging thousands of security contractors to work in Iraq, the Republican Administration required fewer regular troops to be diverted to the Middle East. Similarly, fewer Reservists and National Guard have been called up. Other costs have appeared in their place. Open government, transparent process and public accountability have assumed lesser prominence. Nor is executive government under the same pressure to form empathetic alliances with other states. As one American officer described it, ‘When you can hire people to go to war, there’s none of the grumbling and political friction.’40 If costs occasioned by the use of force are sharply reduced and other factors remain unchanged, then military action seems more likely. Instead of the roughly 140,000 US troops in Iraq in 2006, an absence of contractors would have required a garrison of thousands more.41 If similar numbers had to be found for the 2003 invasion, the Republicans would have encountered at least somewhat greater difficulty in persuading the American public and Congress to acquiesce.42 For any democratically elected government seeking to launch a conflict, a military expedition is exactly the sort of matter over which the institutions of a robust democracy should be encouraged to engage in vigorous and informed debate. This is particularly so where the


evidence supporting a case for war has been fabricated, manipulated or contrived to meet ends that bear a doubtful relationship to national security.43 American economic dominance carries other ramifications. In particular, US politico-economic movements tend to define the nature and extent of globalisation elsewhere.44 One facet of this authority is the manner in which government choices are influenced by the agendas corporations wield. The big logistic support corporations in particular couch their aims in terms that emphasise the economic interests of those states likely to hire them.45 They have been effective. The UK government has retained billions of pounds through its ‘Public-Private Partnership Initiative’ and ‘Private Finance Initiative’. These programs are intended to extend to a very wide range of capital items, which the private sector will own, leasing them or selling services to the government. They will include base construction, air-to-air refuelling and even the procurement of fighting ships for the Royal Navy.46 This growth in influence also implies a retreat for other constituencies and their views. This in turn suggests there is some truth in Hall and Biersteker’s claim that these corporations seek legitimisation from the public and they author norms and set boundaries for action.47 In doing so, corporations exercise that frequently convincing type of authority born of expertise. The result is a fresh blurring of a recurrent and amorphous distinction between the realms of public interest and the more private realm of business. For that matter, the larger privatised defence industry is itself a relatively internationalised example of global commerce.48 Nor could capitalism exercise these more recent encroachments without governments playing a compliant role in assisting their corporate expansion. And strong states have arguably been penetrated most thoroughly by globalisation. The US has reduced its federal employees in recent years and greatly expanded contract work49 to the point that the number of contract employees working on federal projects is several times the number actually employed by civilian agencies.50 Ian Clark suggests that suffusion by the forces of globalisation is a source of state strength rather than developing weakness.51 One can see this in the differing purposes of outsourced military services sold to imploding states as opposed to stable, affluent examples. The Angolan government’s contract with Executive Outcomes to train their troops and lead them in combat operations was a third world outsourcing case.52 The US government outsourcing the maintenance of advanced military software is a first world example.53


The rise of private authority in the form of combat services is one manifestation of this expanding globalisation.54 At the time of its Papua-New Guinea contract the PMC ‘Sandline International’ possessed traits which collectively characterise a genuine transnational, albeit one of modest dimensions. The company was registered in the Bahamas, maintained offices in London and Washington DC55 and carried on business in Oceania and elsewhere. Many of its employees appear to have been South African nationals, some originally from other African states. Much of its military equipment was apparently purchased in Eastern Europe and it successfully pursued litigation against the Papua-New Guinea government in arbitration proceedings in Queensland, Australia. It would be surprising if the arbitration award was not promptly transferred to a tax-effective destination.56 Nor was the company restrained by national borders, mobility being a necessary trait among modern PMSCs.57 Sandline enjoyed considerable mobility of operations and could source personnel and equipment from where this was most advantageous and send them to where they could work most profitably. Its predecessor Executive Outcomes reportedly had a staff of only 30, yet could allegedly field a fully supported battalion of 650 men in just over two weeks.58 In that type of highly specialised enterprise, there were savings made in areas Herbert Howe has identified: superannuation, pensions, salaries and housing; and savings on leased rather than purchased aircraft.59 Unlike train-and-equip corporations based in the United States, Sandline management did not appear to promote British foreign policy in the same prescriptive sense in which American PMSC directors seem to view the world on behalf of US Administrations.60 This is a matter hinging on differing political history and military cultures on either side of the Atlantic.61 Clive Jones has argued that British history bequeathed a more tolerant legacy for UK controlled PMSCs.62 The candidly titled ‘British Mercenary Organisation’ operated in Yemen on the side of the Royalist forces during the 1962–65 hostilities. Jones contends that this entity was the historical antecedent to modern PMCs which took form 30 or more years later. Of course, Sandline’s Westernoriented interests dictated an expedient and understandably businesslike view of politics. Keeping on positive terms with Washington and London in order to avoid being identified as an irritant to the hegemonic order was a different obligation, if at times a no less onerous one.63 It is sometimes said that modern PMSCs are unlikely to subvert the policies of those states in which they are based.64 This argument appears strongest where companies are registered or have head offices


in powerful states with global interests and complex responsibilities. Likewise, the implications of an absence of patronage can be crucial. One reason for EO’s decline was that it did not enjoy the support of the (then) new South African regime. The company instead attracted ideological hostility, suspicion and eventually restrictive legislation.65 Even with suitable fealty demonstrated to Washington and London there remained disconcerting intentions. Sandline and Executive Outcomes materials stated that they acted or would act only for ‘legitimate’ authorities. They seemed to mean state authorities and UN institutions. Yet Sandline did not reject the more ambiguous and provocative category of ‘…genuine, internationally recognised and supported liberation movements’.66 This could have landed a company spokesperson in some difficulty. To whom might these movements have been considered ‘genuine’ and why? International recognition is a notoriously contested matter. How could authenticity have been gauged? What level of support and which source(s) might have supplied the requisite degree of legitimacy? Management was fortunate to avoid a public relations embarrassment. An insurgent movement as a client of a UK or US PMC would be a sensitive matter in London and Washington. There have already been US investigations of the Anglo-American PMC ‘Northbridge Services’ over its proposal to conduct paramilitary operations in Liberia on behalf of an insurgent group.67 US surveillance of that company68 is a manifestation of big power prudence directed at any business with ambitions similar to Sandline and EO. Other concerns arise from PMC mindfulness of not only great power interests, but of those illiberal men who run what is left of decaying states. There exists some evidence that a few PMSCs have agreed to part ownership of foreign subsidiaries also owned by leaders of weak states. These firms may generate healthy profits, but joint ownership in those circumstances suggests erasure of the line between public governance and private interests. The modern state becomes an armed fiefdom, supported by newly effective military and security advisers.69 Not that larger powers are slow to defend their interests where some discrimination in clients is considered necessary. The British government apparently stopped Sandline from assisting the Kosovar Liberation Army once the Foreign Office concluded that such support would not serve UK interests.70 Similarly, the US State Department prevented MPRI from assisting the Mobutu regime as it disintegrated in Zaire during 1997.71 Both examples are evidence that tenacious state authority persists while undergoing the present transformation. It would seem that Sandline was an early if faltering example of transnational PMSCs that are likely


to follow. These will probably mature under the symbiotic if watchful gaze of big power intelligence communities, tax offices, customs agencies and federal police political units. The more powerful executive governments will allow this to occur because they have both overt and more clandestine purposes for these entities.72 For example, when US firm Ronco violated a UN embargo with arms shipments to Rwanda, influence exerted by the US government was helpful in procuring company withdrawal intact.73 Discreet patronage by a strong state has been and will remain a necessity for ambitious companies and certainly for those known to retain a paramilitary capability. In Afghanistan and Iraq much outsourced work has been in logistics, in which a large provider like KBR has received income that dwarfed EO’s earnings at its apogee.74 The logistics field supplies much of the revenue generated by armed conflict75 through embedding the support necessary to maintain a military organisation.76 The domain is very broad and extends from surveys, planning and assessments to the provision of food, fuel, billets, troop transport and other materiel. It involves tasks as varied as washing uniforms, managing mess halls and removing waste of all kinds. It encompasses construction of bases, airports, fences and roads. There are roles in linguistic and interpreter services, recruitment, records, inventory maintenance and other administrative jobs. In military support the technical field is also lucrative and US weapons systems are heavily dependent on contractor maintenance. Chalmers Johnson has listed Patriot missiles, Apache helicopters, Paladin artillery, M1A1 Abrams tanks and ‘virtually all the unmanned aerial vehicles used by the military and the CIA’.77 One might add F-117 stealth fighters, the B-2 bomber and the aging U-2 surveillance aircraft.78 Growth continues. Expanding areas include information technology, communications and new weapons systems; intelligence collection and analysis; and various forms of training. The collection, processing and distribution of military mail for US forces form a billion dollar enterprise that may also be privatised.79 American governments suggest that any ‘non-core’ support which does not involving fighting in the field is likely to be targeted. Yet ‘non-core’ is an imprecise expression. Hazardous aviation in Colombia has involved spraying coca plants and opium poppies from the air by employees of ‘DynCorp’ and ‘California Microwave Systems’. Their eradication aircraft are supported by gunships that carry out fire suppression.80 To many observers the latter task would seem distinctly ‘core’. Such confusion is not unknown in Colombia, where even uniformed US military advisers appear to adhere less than meticulously to


their rules of engagement.81 US military training of foreigners is a prominent area considered non-core. Several American train-and-equip companies have created a track record in advising governments on threat analysis, force design and development, training and doctrine, weapons procurement and the desirable role of armed forces (a least, as their Western patrons view it.) This training has occurred in the Balkans, Africa, Afghanistan and several Middle Eastern states. There have been successful contracts of other kinds as well. In Darfur during 2006, some 7000 African Union soldiers may have lacked clarity in their purpose. Even so, their tents, food and some helicopter transport were reliably provided by the experienced US firm ‘Pacific Architects and Engineers’.82 Various civilian security services also advise on business travel by providing customers with pertinent intelligence and risk analyses. Wherever business involves the risk of violence, armed security tends to surface in various forms. This segment has inevitably grown as asset and personnel protection in hazardous places becomes increasingly integral to commerce, international relief and civil administration. Removal of mines and other unexploded ordnance is another growing field.83 Again, the US is prominent.84 De-mining is of particular importance to impoverished civilians because they cannot farm what would otherwise be productive land. Other areas likely to expand include medical support, water purification, rotary and fixed wing aviation, civilian communications and both temporary and permanent construction. The broad query for the sceptic is an old one newly resurgent: whether the power of corporate structures with military roles is so influential that the most handsomely rewarded beneficiary of outsourcing will be a fresh generation of corporate interests. In other words, do these interests extend an evergreen ‘military-industrial complex’, the principal concern of which is increasing shareholder wealth? The answer will determine that balance of benefits struck between mainly US-based corporations, the US military and those civilians in Iraq, Afghanistan and elsewhere who are ultimately supposed to benefit from changed structures sustaining US government operations. The stakes are growing although numbers remain contentious. American industry representative Doug Brooks in 2006 valued the whole industry, including security, logistics and de-mining at ‘maybe $21 billion’.85 He estimated that the private security market held a global value of just US$ 2 billion in that year.86 At the other pole were estimates for the private security industry of US$ 100 billion in 2005 with it likely to balloon to US$ 200 billion by 2010.87 Reliable figures remain elusive.88


4.4

Corporate interests do not duplicate states’ interests

Uncertainty persists as to the extent that states and PMSCs will prove compatible as they are further entwined for mutual gain. Some argue that the private sector promotes subversive interests which are simply inimical to the workings of states.89 Others believe that private security disrupts state military operations and de-stabilises its command and control.90 For UN purposes another difference seems equally weighty. Even with the utmost honesty and good faith, the public good of security would only be furnished by a company as a means of securing the private good of increased shareholder wealth. As Brooks and Solomon succinctly put it, ‘PMCs work for money, not idealism.’91 In contrast, the UN Charter was founded on a mix of principled selfinterest leavened with idealism. Take notions of corporate management. These remain tangential to the canon of international relations theory and are certainly alien to the UN Charter. Equally, governments are not run according to the verities of corporate management theory. Admittedly, tax-funded bureaucracies frequently couch descriptions of their conduct in oddly pseudo-corporate language. But there is a point at which state/business analogies couched in commercial idiom drift into silliness.92 A defender of private corporations seeking UN support might respond with two observations: first, states have hardly proved reliable adherents to Charter tenets over more than 60 years; and second, corporate perspectives may assist the UN to reach particular Charter goals. Both seem reasonable at first glance, but a corporate military tender to the UN would be a very different form of association to that entered by a state. For both the company and the UN it would be a business agreement before anything else. As far as a business arrangement might in future be viewed as a political agreement, it would be imprecise, clumsy and ambiguous. Logically enough, this is because it would have been formulated in terms which emphasised the commercial over the political. But armed conflict is intensely political and in a climate of uneasy disagreement the transaction would almost certainly convey different meanings to the different parties. Another difference concerns the degree of institutional responsibility accepted for the carriage of operations. Governments will routinely contest responsibility where peacekeeping operations fail and claim it where they have had a hand in a success.93 Management of a military corporation of the future will claim merit for its own successes and perhaps to some extent the success of others. However, should things


go badly, corporate personality is deliberately constructed to embody limited liability. Shareholders may have created their company in a jurisdiction providing tactical distance from an unhappy principal, creditor or even a disgruntled employee. This could be useful should an aggrieved party seek remedies for poor managerial or directors’ performance. By contrast, neither the UN nor its members can shift themselves about to similar advantage. The point bears some rumination. The military businessperson Timothy Spicer has termed modern PMCs ‘permanent’.94 However, this is so only for as long as their shareholders – or sometimes creditors – wish it to be the case. Perpetual succession is not the same as permanence and a corporation may be wound up for various reasons. Sometimes this is prompt. Sometimes it takes several years. In either case, extinguishment may serve the interests of shareholders where continued existence may not. Corporate flexibility might also prove a potent tool if employed against the UN for political or purely financial reasons. Imagine an astute adversary purchasing shares in a new contractor and as Peter Singer put it, removing its antagonist ‘from the market rather than the battlefield’.95 In the alternative an antagonist might purchase a parent company (if one exists). New appointees on the board of the parent could then institute a dramatic change of ‘strategic direction’ in a puzzled subsidiary holding a UN contract. In another scenario, a satisfactory tenderer might win a lucrative contract. That company might then be purchased by a wealthier but unsuccessful tenderer. The new owner may possess few or none of those qualities identified by a UN evaluation team as reasons for awarding the contract to the winner. But the purchaser will still hold a very conventional desire to reap profits likely to be earned. More generally, the UN is accustomed to member state mismanagement, which may continue up to and well past the point of manifestly dishonest or incompetent administration. This is not usually the case with companies. Months into a deployment the UN will not wish to find itself asked to ‘bail out’ its contractor. Nor would it relish the prospect of watching company assets broken up for sale while a UN operation flounders. Whereas profit-seeking companies are subject to market dynamics, states’ armed forces at least exercise an institutional resilience in the face of repeated poor performance. Nor are states’ forces subject to most of those vicissitudes which arise from market-based instability.


Individual responsibilities also vary. A managing director of a company is likely to stay in his job if his shareholders are satisfied, he has the confidence of his board, the remuneration is fitting and nothing more attractive beckons. However, corporate officers may also resign or be bought out of their contracts. Phoenix-like, they may re-appear clothed in new corporate or trust structures created in distant states. Governments and their IGOs tend to work differently. Whether elected or appointed, their officials tend to stay the course of their terms unless forced from office. Department heads sometimes enjoy tenure. Others fulfil fixed term contracts. And whether government ministers are members of one government or several, each will certainly be within the same state. In contrast, company directors sometimes control multiple entities in several jurisdictions. These might carry out various functions. Yet each is likely to be part of a single, coherent purpose. One such web of companies identified by Musah and Fayemi96 allegedly held co-operative objectives in African extractive industries during the 1990s. Its participants included military service providers. There are other differences. Shareholders will usually desire dividends, capital gains and occasional issues of further shares at less than market price. Management will typically want wages, bonuses, options packages and nonwage benefits. By contrast, the Security Council will generally seek stability amongst (and increasingly within) states.97 Not only ends differ. Means are seen through different eyes. Even the most diligent agent’s leaders will not view their tasks through the same politically tinted glasses worn by their principal. This will have consequences. For example, company representatives will consider the value of a UN contract in terms other than financial. The corporation will have marketing goals elsewhere and potential customers would be attracted by the strengthened legitimacy a UN contract would supply in a competitive global marketplace. Just as company names are the bearers of reputation, those names attached to multilateral deployments would carry influence.98 If a UN contract was performed successfully and public exposure proved positive, the resulting cachet would be worth heightened goodwill. That goodwill would nonetheless prove ephemeral unless the company built on trust and recognition of brand integrity. Management would be aware that a reputation for demonstrated competence would be a necessary (but not sufficient) condition for survival. And if the number of contracts secured in other places was to rise, this would in turn inflate the value of company or parent stock which – particularly if publicly listed – could raise its attractiveness as a takeover target. Last, kudos for early success would also be desirable in


an industry in which some actors’ military skill has not always been matched by their political acuity.99 These scenarios provide a considerable contrast to sovereign forces on UN deployments. There is also a difference between state and corporate perceptions of legitimacy. Early in Colonel Spicer’s autobiography, the reader is struck by the frequency with which he describes the importance of PMC support for ‘legitimate’ governments.100 On its face this is a proper enough intention. The difficulty lies in ascertaining the legitimacy of a government that may exercise authority over a limited part of a populace, territory, or borders. That government may in fact carry out few of those functions expected in the West. Moreover, it may do so with limited tolerance of dissent, while embracing say, patrilineal tribalism. It is not surprising that legitimacy as measured by functional or representative yardsticks is doubtful in weak states; or that claims to sovereignty are often violently disputed from within.101 On the other hand, Spicer refers in passing to the dictators of Africa, Asia and the Balkans and laments that the UN will not ‘take them on’.102 He champions a familiar view. The more sceptical reader will recall that some of the more odious dictators of recent times were in the past valued friends of those Western states with which Spicer’s business requires sound relations. Saddam Hussein and the USA spring to mind.103 In business – as elsewhere – timing is everything. ‘Legitimacy’ poses a problem for honest business because it is a far from objective term. It is a malleable one, relentlessly shaped and reshaped in the public mind to serve the evolving interests of stronger governments. They work to influence international perceptions as to which suffering peoples are to be considered deserving or relegated to the ranks of the undeserving. A despot with democratic pretensions may be favoured by the West today but his legitimacy may be withdrawn tomorrow. He may offend a more valued ally; cease to serve Western interests or no longer decline to subvert those interests. The West may find a more pliant or otherwise suitable ally in the region; or decide to seize direct control of valuable assets. If left in power, the redundant ally is sometimes re-classified as the master of a ‘rogue state’. This exercise in power politics is an ordinary practice for the US government and one or two allies. But it carries an unwanted ethical dilemma for business. How is one to locate legitimacy in the proper use of corporate forces of the future when states are ruthless? In this context the role of UNSC authority would seem attractive. However flawed in structure and compromised in practice, in terms of legitimacy the Security Council remains without peer. And the use of force


in the absence of this legitimacy remains inherently problematic in both political and legal terms.

4.5

Some UN issues

To engage contractors successfully the UN will need to resolve some divisive matters. One is attainment of P5 consensus on deployments in the Security Council at a time of strong Anglo-American bloc influence. There are perhaps four reasons for this drift: the US and UK governments exercise considerable influence over the leading PMSCs; management and sometimes the workforce and shareholders of these companies are frequently British or American; both states exercise a veto power on mandate formation in the Security Council; and the US exercises such a preponderance of individual influence that no decision to engage contract peacekeepers could succeed without approval from the US government, quite apart from its P5 privileges. In that context, rotating states on the Security Council are very likely to register the existence of both American and UN incentives. Recent work by Harvard economists Kuziemko and Werker suggests that developing states extract rents during the two years in which these poorer rotating members sit on the Security Council. This rent takes the form of US aid inflated by an average of 59 per cent and UN aid inflated by an average of 8 per cent.104 That is powerful encouragement (or bribery, depending on one’s view.) The risk of withholding it implies correspondingly potent coercion. Should a corporation secure a contract for peacekeeping operations, a degree of authority would be transferred from the DPKO to private companies. There would no longer be a UN organisation interpreting a mandate through a familiar culture created through decades of institutional practice. Instead, a for-profit company would interpret a mandate through its own procedures, beliefs and culture.105 These are likely to contribute to a different outcome. It may be an improvement in light of manifold problems in UN peacekeeping.106 There remains the possibility that it may not. One reason for this uncertainty is that the results of a contractor’s efforts will be the product of factors over which its control is limited. One example is the incomplete information about differing preferences held by principal and agent. Another is that the strength of will and resourcefulness of an adversary may be difficult to assess. A third could be insufficient legitimacy attached to the company in the eyes of indigenes. This can occur for sometimes unexpected reasons, such as insufficient funds directed to expectant local potentates, as occurred in Somalia in the early 1990s.


From the other side of the transaction, expected benefits of reliable deployment, increased efficiencies and at least some lower costs would be balanced against raised risks in other areas arising from a decrease in principal control. One of these is likely to be Security Council management over battlefield choices in the use of force. A certain respect for the agent’s judgement would be desirable where first-class military skill has been purchased by a principal holding less than flawless military proficiency. Theatre operations should not be micro-managed by the UN Secretariat and UNSC where confidence building between principal and agent would benefit from the exercise of unaccustomed latitude towards those holding and exercising military expertise.107 One may take the view that a corresponding and perhaps competing risk emerges: that contracting out the execution of UN policy to a corporation may create a shift away from the idea of common obligation amongst the UN membership. One might also suggest that many relieved governments are likely to welcome decreased exposure for exactly this reason. Another concern is the paucity of evidence supporting the proposition that future humanitarian intervention is likely to deter gross human rights abuses (although it may inhibit some in the short term.) Sustained combat operations may be necessary to subdue delinquent government, insurgents or both. Consider the ferocious violence in the former Yugoslavia or Rwanda during the 1990s or the present situation in Sudan in 2009. The problem is the absence of certainty that grave human rights abuses carried out by a ruthless enemy may be quelled in weeks or months. What is the Security Council to do should operations be prolonged over months or longer with no clear victory? Determined guerrilla tactics and a war of attrition against UN company forces could only be sustained for a finite time. At some point, political and contractual pressures would necessitate deployment of either larger UN formations or regional units. On the other hand, the consequence of a failure by UN members to provide the required troops and materiel would be a humiliating contractor withdrawal. The consequences for a distressed people expecting sustained assistance would be considerably more serious. There are other dilemmas. One is the settlement of company troops on a base in a suitable location. They would need somewhere to plan, train and exercise. On-base construction of logistical facilities and warehouses would be required to secure necessary stockpiles. Billets would be necessary for soldiers, aircrew, naval personnel and the civilian staff who would maintain the force. There should also be adequate housing for some of the dependents of all of them. Schools and shops


should be adjacent or on site. The base should include airstrips, a hospital and communications centre. Bitumen road access for low-load articulated vehicles would be required to transport armour. The facility should have a port or at least be close to one where roll-on/roll-off shipping is practical at any time. Firing ranges for small arms, mortars and artillery will be necessary; as will several thousand hectares of mixed topography and vegetation on which to train, preferably with a coastline. The base should not be located amongst the colder states of Europe’s north. The effect on equipment would be unhelpful and soldiers from temperate zones would find it difficult. Similarly, the consequences of heat and salinity in other places will necessitate measures to maintain equipment and materiel of various kinds. Locating a base with the necessary attributes would also be a sensitive matter for political reasons. If set in the Middle East this might imply a plan to influence the Arab/Israeli dispute in a particular direction. If placed on the African continent this would suggest to a dozen dictators that they might be likely targets. Location within the US at one of several suitable sites is likely to convince the Islamic world that the UN had succumbed to an already undesirable dominance. And emplacement in a very poor state would raise inevitable questions of neo-colonialism. Even the most nimble balancing of these tensions will probably supply only a handful of potential locations. Another issue is finite resources. Despite a recent decline in the number of conflicts, the near future will probably supply the world with perhaps two dozen major struggles at any one time. Not even the largest UN contractor could deploy in all of them. Rivalry amongst multiple claimants would be inescapable. Many of them are likely to put valid cases for UNSC assistance. Less fortunate populations in some of the more cruel struggles would doubtless request UN assistance through humanitarian intervention. But no matter how well equipped and trained, states seem likely to resist paying for a contract force likely to reach more than a very modest size. In the light of thinking after the Rwanda genocide, a reinforced brigade of 5000 may be adequately ambitious.108 This is small in comparison to those formations even modestly equipped states may project if they choose.109 A disagreeable truth is that the strength of likely opponents would determine chosen theatres as much as the merit in claims by the suffering. How UN members eventually decide on criteria to both limit and legitimise intervention would demonstrate much about their preferences and those of the P5 most of all. The Security Council is likely to


favour a very limited span of struggles and each permanent member can always threaten a veto if its preferences are not met. This in turn is likely to arouse resentment in the General Assembly. P5 partiality may well be seen as politically unjust, inimical to the spirit of the Charter and incompatible with a search for peaceful co-existence through other means. Security Council decisions on company deployment may even be the cause of a divisive struggle between the Assembly and the Council. Tension between the two over management of peacekeeping matters is not unknown.110 A confrontation could be engineered by some states’ refusal to pay for the creation, maintenance and deployment of a contract company. One should bear in mind that several of the more powerful UN members have a long and repetitious record of stout resistance to obligations to pay their assessed contributions. Moreover, most past deployments have been proposed in far less contentious circumstances than the mandate a contract force is likely to contemplate in relation to an humanitarian intervention. Cost is always a sensitive matter in multilateral operations. Over a decade ago Kinloch identified a Netherlands government estimate of US$500–550 million for procurement and US$300 million annually to pay for a brigade of 5000.111 In the mid-1990s Urquhart suggested a figure of $380 million per year to train and equip another force 5000 strong.112 These figures are of limited use in 2009 because military organisation and technology have moved on. Whatever the figure, producing the money will require the goodwill of a powerful group of states. Yet in terms of global military expenditure, the sum would be very small. If for argument’s sake a brigade cost $500 million to equip and $500 million annually to run, that first year total of $1 billion would be less than one thousandth of today’s arms expenditure. This seems a tiny sum when balanced against potential benefits. It is an amount easily affordable to states in the prosperous West in particular, where leaders have become accustomed to funding smaller defence budgets since the decline of the Cold War.113 The question is whether major contributors will be inclined to spend the necessary money for reasons they believe serve their own interests as much as those of the less fortunate. Put another way, whether or not there is a future consensus over money would be largely a consequence of the political value donors perceive they would reap in operations that are more effective. Agent and principal may also encounter unhappy industrial relations that carry unexpected consequences. For example, a threatened strike by a security firm in Baghdad in 2006 seemed likely to leave diplomats


without bodyguards and convoys without armed escorts.114 Another private security company guarding Baghdad airport in 2005 briefly closed the facility over a pay dispute.115 The matter in 2006 remained an industrial irritant, a threat to Iraq’s air traffic and a gnawing security problem for the Americans at nearby Camp Victory.116 These kinds of problems are unlikely where regular military units are despatched to guard airports, convoys or diplomats. For sovereign soldiers to strike on operations would be mutinous and carry consequences much worse than losing their jobs. An individual UN contractor could be subject to military law such as that devised for a contract legion identified in Chapter 6 and Appendix I. However, whether a corporate employer would weather an industrial relations buffeting as robustly as a state organ remains to be seen. In contemplating these tasks the UN and its contractor contemplate different pecuniary responsibilities. The UN membership would face some fixed and less determinate costs, while the contractor would grapple with incentives to control expenditure as far as possible. This is easy to suggest in theory, but the ebb and flow of violence in war leads to uncertain outcomes. This is why there can seldom be a genuinely fixed limit to costs within a bargain involving military conflict. And because the stakes are higher in war than any other human endeavour, the genuine costs of equipping and deploying a military force is often concealed.117 Even assessing a fair schedule of contract fees may be difficult, because establishing standards and costs from industry best practice is an aspiration without a meaningful basis. There is no bulky provider database or information clearing-house to which the UN might turn for industry rankings on contract legions. Put another way, the market is poorly supplied with comparative supplier performance data, from which the UN as a consumer of military services could benefit. Finally, there may be some truth in a discouraging observation offered by Adam Roberts when he considered the merits of a UN rapid reaction force. Roberts opined that the UN and the office of the Secretary-General might be undermined by a grasp at military functions.118 He emphasised that some of the more notable UN achievements had been based on negotiation and consent of the parties.119 This is a point not easily contradicted. Would a robust mandate which directs a corporate agent to absorb or dispense violence test the boundaries of state co-operation and inflame suspicion of UNSC purposes? Even in a disciplined, corporatised form, experiments with effective forces could prove inimical to those fragile and finite possibilities open to the UN in advancing the cause of peace.


4.6

Implications arising from recent US policy changes

In a pivotal December 2005 Presidential Directive, President Bush announced that the State Department would be given control of Iraqi reconstruction.120 His Administration wished to bolster stabilisation operations in Iraq at the same time as it fought an escalating conflict.121 That decision removed Pentagon responsibility.122 This had been expected, as the Department of Defense had proved unsuited to the task.123 A Defense policy directive issued soon after the announcement made it clear how reconstructing shattered states and engaging in stability operations was to become ‘a core military mission’124 and an integral part of US military doctrine.125 These operations are to occur once an enemy has collapsed on the battlefield although it may be able to sustain guerrilla operations.126 The doctrine represents a shift away from the earlier, established belief that stabilisation and reconstruction operations were detrimental to wider combat readiness. Even though there remains some uncertainty as to whether US plans will be adequately funded,127 the American strategy for provincial reconstruction teams128 is likely to employ civilian contractors in growing numbers. In 2006 five teams were created in Iraq and they have been judged by military analysts to be a ‘cornerstone’ of a broader counter-insurgency strategy.129 At about the same time the US Defense Department’s February 2006 Quadrennial Review formalised a doctrine the Pentagon termed ‘The Long War’.130 This was followed the next month by a new National Security Strategy for the United States which embraced a doctrine of ‘Post Conflict Stabilization and Reconstruction’.131 If civilian involvement is greatly expanded in the newer conflicts, the attendant cost of private security is likely to be considerable if US or friendly armed forces do not provide it. American PMSCs in particular seem likely to enjoy enhanced growth as a consequence of the US government’s apparent belief in the inevitability of American involvement in perpetual armed conflict. For UN purposes there is a weighty significance in newer American meanings attached to ‘stabilisation’ and ‘reconstruction’. Both were part of a UN lexicon before the US adopted the terms. In mixing military force and civil assistance, American power will inevitably become involved in areas of humanitarian interest.132 Here one should be clear on US intentions. Stability operations are not seen as a good in themselves. They are undertaken because they are perceived to serve US interests rather than a multilateral agenda consistent with the UN


Charter.133 This will create competition and tension with UN agencies and NGOs. Both will have to learn to co-exist with American and allied operations in which their military and civilian conduct complicates the good intentions of the UN, other IGOs and NGOs. Competing goals could in theory cause friction with a UNSC mandate and its implementation by a PMSC contract force. In practice this is improbable as the US is almost certain to make clear that the deployment of a contract legion would be permitted only where American interests are likely to be served, or at a minimum, are not jeopardised.

4.7

Moral hazards and the PMSC

Some ethical and practical perils will attend contractor operations. Some might seem surprisingly conventional or even mundane. For example, it is possible that contractor management could prove sub-standard in a host of familiar ways. It may have an organisational culture which alienates its employees, offends the UN Secretariat, irritates lower-paid states’ troops and fails to instil loyalty or respect in those who are exposed to it. Or it may be simply incompetent. Some US military train-and-equip companies have already performed poorly in Iraq.134 Other American corporations involved in contract policing in Afghanistan have also delivered unsatisfactory training in some accounts.135 Moreover, where performance indicators are non-existent, experimental or in their infancy, management may see opportunities to promote services which result in greater profit rather than greater effectiveness. Pressures of this nature could arise from various sources. There could be casualties and loss of equipment from unanticipated violence and sudden tactical reversals. An unsympathetic press could easily put these setbacks in a damning light. And if trust and confidence were to dwindle in a climate of unexpected violence, then battlefield initiative might be lost. Ominous choices could become increasingly difficult to resist under rising pressure. Would managers overcharge or take less time to find properly skilled personnel, as has been alleged of DynCorp in much less trying circumstances?136 Might they find it more profitable to retain some scarce resources rather than risking them, should these be difficult to replace? Are executives likely to use methods and means of peacekeeping or warfare that inflate bills, meet a covert timetable which maximises income, or perhaps raise questions of military ethics? Cost containment in armed conflicts is subject to notorious risks because organised violence tends to create an impetus to raise rather


than lower or at least contain expenditure. Some escalation is reasonable where equipment is unexpectedly damaged, personnel become ill or are injured, where additional or specialised transport is required; more time is necessary than anticipated and so on. Even so, mounting costs may be unreasonable where keeping each soldier or piece of leased equipment in theatre suggests opportunistic exploitation. For example, would the company contrive the deployment of unnecessary logistic support and specialised, higher cost employees who may be less than vital in the circumstances? This type of moral hazard became infamous in cost-plus profiteering over the last five years in Iraq. Certainly, some replacement or upgrading of equipment may be time consuming to locate and negotiate and expensive to purchase. But military procurement is a field notoriously tarnished through inflated prices, sub-standard quality and corruption of government bureaucracies.137 The UN and its contractors enjoy no particular immunity from these risks. Complex military procurement in turn raises the necessity for effective methods of oversight and accountability. Both are historically difficult to create and maintain.138 Management may also behave deviously in lobbying and competition tactics. A contractor might seek to influence the views of elites within P5 states and the rotating ten members of the Security Council. This could be achieved through funding key political parties or patronising their leaders and providing allies with a revolving door of corporate sinecures. Something not wholly dissimilar has been an unremarkable convention in the West for decades.139 Contractor representatives may also toil at influence peddling, wider political donations and some judicious but effective bribery. Some of the targeted leaders may also be politically intolerant. Their electorates – if that is a meaningful concept – may know nothing of campaign or other contributions supplied by ambitious tenderers. And in authoritarian states, inquiries into benefits paid to cabinet members or senior civil servants seem improbable. Contractors are also likely to have assiduously studied the legal environment in which influence buying might be a lawful if discreet enterprise. If or when elected to the Security Council, a newly pliant government may exhibit unexpected approval of privatisation measures. Those responsible will understandably wish to maximise company chances of securing a contract. And they will quickly realise that prerogatives held by the Security Council are exercised through a process known for its obscurity. Profit for a PMSC investor should be relatively generous compared to the return on other investments, as a UN enterprise will almost certainly be littered with plentiful dangers. Nevertheless, the spectre of


attractive profits will also be an incentive to engage in sharp practice and political gamesmanship. One could travel further towards the more ominous end of a spectrum marked ‘degrees of moral turpitude’. Here a contractor might choose to contrive an artificially low bid to secure an attractive client like the UN rather than supplying it with an honest expectation of costs. This may occur where unscrupulous management wishes to establish a ‘loss leader’ in a market where beating competitors to the first contract is likely to provide advantage in the short term and could prove crucial to survival in the longer term. Having exploited shortterm advantage in information asymmetry, company executives could then work at eroding in-house capabilities with three goals in mind. The first would be re-negotiation of fees at a point where the company’s position is sufficiently entrenched and UN capabilities satisfactorily run down. At that moment the contractor chairperson might announce the discovery of an unexpectedly difficult ‘operating environment’. The second goal would be to contrive protracted operations intended to increase costs where these could not be fixed due to the uncertainties of conflict. This would be a risky as well as unethical strategy. If management misjudged the matter, a finite UN capacity to bear costs arising from a lengthy struggle could be felt sooner than expected. The third goal would be to ensure that attempts at replacement would be disruptive, costly and difficult. Company personnel could work at this, having inserted themselves as an essential element of the UN apparatus. This risk is more likely should the UN become captive to a monopoly supplier. Most monopoly suppliers face uncertain incentives to work hard, improve service and avoid exploiting information on the finances and policy inclinations of their clients. Moreover, the longer the contract lasts, the greater the probability of these problems occurring. For example, at the re-tendering date for say, a four-year contract, an incumbent firm may be able to fix its price to an optimal point determined by several factors. Management will know more about UN capacity to pay than it did when they first tendered. Company officers will have acquired experience of the UN’s organisational culture. They will have established lines of communication with UN staff at diverse levels of seniority and probably through other, unrelated areas of the UN enterprise. There may be friendly, supportive relations and some exchange of employment. Moreover, the company would have built a network of informal sources within the UN. These would supply it with valuable intelligence on the latest political machinations to be


exploited at the most favourable moment. A fresh competitor would struggle to match these advantages. Yet one of the key rhetorical justifications for privatised services is the maintenance of genuine competition.140 One might imagine other circumstances in which corporate leadership might exercise some guile in securing extra benefits. Managers would probably not be reckless enough to become directly involved in extractive businesses by seeking diamonds or oil, lumber, gold, coltan or other minerals. Instead, the ethically challenged are more likely to trade intelligence on valuable resources to another company controlling a web of subsidiaries in mining, surveying, private security, government relations, transport and banking. It is this web of companies that could provide the contractor, its parent or related parties with an undisclosed beneficial interest. Through the creation of a sufficiently opaque and intricate business structure, this relationship and exchange of benefits could be difficult to detect and therefore unlikely to jeopardise a UN contract.141 And if one countenances still darker hazards, management could of course engage directly in more nefarious enterprises. For example, some security providers in Iraq face allegations of fraud.142 It seems that fresh opportunities dress familiar moral hazards in only slightly newer forms. And when criminal acts are committed by an employee in the field, these pose problems for otherwise uncompromised management. Serious misconduct could prove a public relations disaster and prospective clients lost if facts were exposed to investigative agencies or the press. Should information regarding employee crime become known within the company and insufficient action taken to mollify the more indignant employees, some of the latter may become whistleblowers. That risk could easily create an incentive for management to suppress evidence of misconduct, particularly if it was their own. Concealment could be tempting where circumstances provide half a dozen incentives: where there is no functioning legal system in the state where the conduct occurred; where the company’s home state has inadequate or unsuitable legal processes for plaintiff action and the cost of an attempt is likely to be prohibitive for a relatively poor foreigner; where the government of the state of which a suspect is a national shows a disinclination to pursue him or her through legal structures existing in that state; or through persuasion of others states’ governments via co-operative administrative or treaty arrangements. There may be no international or other tribunal suitable or inclined to address the matter; or for more uncertain reasons it is not likely that


the truth would otherwise surface. Whether civil or criminal, legal actions are often messy, embarrassing and lengthy. They are frequently costly in money, stress and reputation. Company management may behave honestly and an accused employee may eventually be found not guilty by a respected tribunal. Even so, the company concerned may well find it difficult to avoid some stigma. In exploiting the link between the capacity to inflict violence and a willingness to turn this to profit, modern corporations are likely to grapple with similar temptations to those experienced by mercantile empires of centuries past. This is because wars today are in one sense no different to wars of any era. They still involve familiar commodities: diamonds, gold and precious gems, addictive drugs, lumber, oil, other valuable minerals, weapons sales, slavery, illicit currency movements and the labour required to move it all. As in the past, contemporary commerce is conducted by governments, warlords and organised crime. The means also remain unchanged: violence, diplomacy and subterfuge. Each takes an assortment of recognisably sordid and time-proven forms. It is almost certain that there will be potent enticements for a UN contractor to dabble in the same lucrative businesses. That lure may well be much greater than in the past. This is because today’s contract military is better educated and organised than their historic counterparts. In particular, they are financially and commercially far more sophisticated. Several scenarios drive these concerns. For example, security firms originating in South-Eastern Europe face difficulties with organised crime and related political affiliations.143 Eastern European criminals have already tried to buy Scandinavian security firms144 and a tender application from that region may warrant examination with care. Not that there is anything new in UN efforts to suppress transnational and organised crime, something which has absorbed UN energies for some years.145 The illicit military market will pose other risks. Imagine a scenario. In the near future the UN investigates the potential for settling a violent struggle between a pair of intrastate parties. Both are subject to international arms and training embargoes. Stirrings in early peace negotiations seem favourable and belligerents are persuaded to cooperate. The UN tasks a reliable private contractor for peacekeeping duties and company troops are deployed rapidly. They carry out their work diligently while talks progress encouragingly. Unexpectedly, one belligerent abruptly ceases negotiations. To the dismay of the other parties the reason soon becomes clear. The recalcitrant party has not acted in good faith. It has covertly purchased military skills and equip-


ment provided by the criminalised end of the market. With these it now anticipates resisting the will of the Security Council, something in which failure cannot be considered a certainty. In many states there exist licit and illicit markets for various goods and services of value to military purposes. Those proscribed for sound reasons by a state (or even all states) will often be available through criminalised markets should the existence of sufficient demand justify the risks attached to supply. This is a forceful truth and applies to maverick military advice and underground supply of weaponry just as it does to other prohibited markets: narcotics delivered through trafficking, the clandestine satisfaction of deviant sexual appetites, smuggling of ‘conflict’ diamonds, the illicit trade in human organs, modern slavery and so on. To supply the prohibited military market there are potentially thousands of recruits who might participate in renegade military operations in almost every capacity. Some are welltrained, experienced and from impoverished backgrounds which supply few other options. Others will have records of human rights abuses. A few will bring particularly valuable skills. Pilots with combat experience are a prominent example.146 Some trainers are particularly valued, notably the Israelis. The notorious Colonel Yair Klein and his company ‘Spearhead Ltd’ are believed to have trained employees of the drug cartel controlled by Gonzalo Rodriguez, the now deceased Colombian narco-baron. It seems Klein later sold his talents to the even more appalling Revolutionary United Front in Sierra Leone.147 There are few barriers to prevent insurgent leaders hiring these advisers and elevating the proficiency of sub-standard forces. For that matter, those advisers may be personally known to future UN contractors. This would be nothing new. Inter-company conflicts were a common phenomenon during the era of the chartered companies.148 Flush with money from extractive industries, belligerents might lease reliable equipment and hire seasoned personnel. These contractors may be skilled in surveillance and intelligence collection; may procure and operate serviceable armour and artillery; and fly dependable helicopter gunships and fixed wing transports. These resources would provide a future paymaster with a greatly enhanced chance of obliterating his opponents. Other items and services would vary with conditions and requirements. These could include an efficient command and control apparatus; an information warfare capability; and most important of all, effective training and discipline. What if these enhancements and the intention to use them became known to both contract employees and states’ peacekeepers on the


ground in the scenario a few paragraphs above? Choices would be limited. Sovereign troops would be likely to withdraw. If replaced by humanitarian intervention troops supplied by a contractor, these in turn might find themselves startled by antagonists led with professional skill and technological sophistication. The commerce in goods and services which assist a determined enemy reach this point may be proscribed, but this is hardly the point. Treaties, Security Council Resolutions, General Assembly Resolutions, municipal laws and political conventions may prove ineffective in the face of resilient laws of supply and demand. In practical terms, formidable military capabilities could find their way into the hands of well-funded and stubborn UN adversaries. Another problem is the unhealthy symbiosis which exists between states and organised crime. Governments have found it beyond either their collective will or capacity to suppress flourishing transnational crime over the last century or so. Unfortunately, where war and crime create opportunities for mutual benefit, governments have found it expedient to remain on favourable terms with criminal organisations. One of the more remarkable examples occurred during the US IndoChina hostilities of 1962–75. The American government became a notorious international narcotics trafficker in an attempt to retain influence with anti-communist gangsters via extensive CIA operations. This ill-judged foreign policy ended in entirely predictable disaster.149 Such conduct was not isolated. Administrations of the same era collaborated with organised crime in attempts to assassinate foreign heads of state.150 One anticipates that management of a future UN contractor may face Permanent Five pressure to clandestinely tolerate or even assist criminals whose interests coincide with those of powerful states’ foreign policies. A carefully crafted balance of incentives and penalties could easily place company executives in a distasteful dilemma as pressure is brought to bear. Ethical resistance to big power subversion could certainly result in a loss of business and personal costs to those who may become known as ‘unpatriotic’ in the corridors of their home state bureaucracies.

4.8

The de-stabilising capacity of resistant states

There are several reasons why governments might frown on recruitment of their soldiers to a UN military contractor. One explanation is the presently taxing workload of some Allied troops and in particular


UK and US special forces. They undertake repeated and sometimes extended tours in Afghanistan, Iraq, Africa and many other places.151 An increased tempo of operations has been aggravated by the attrition of experienced members through recruitment to private security companies working in some of the same countries. This phenomenon has affected other NATO states like Canada152 and even small countries like New Zealand.153 Some estimates put British losses to these companies at one in four SF veterans over 2003–2006.154 This is not surprising as PSCs have offered better pay155 although the sums have declined. Unfortunately, the drain has occurred when the British Army is short of hundreds of non-commissioned officers in its infantry and almost all of its battalions face labor shortages.156 The Canadian government has responded by raising its SF allowances157 and the British boosted SF income by around 40 per cent in 2006.158 The UK government has also offered a ‘comeback clause’. This provides a gap year in which SF troops might work briefly for private firms. Having saved some money as contractors they are welcome to return to the government fold.159 Corporate medicine is another competitor. The Canadians have been losing military physicians in disconcerting numbers. Recent medical officer recruitment has been beneath targets. More disquieting has been the poaching of serving officers by a company that has hired them to work on Canadian military bases.160 Consequentially, the deployment of Canadian armed forces overseas has met a shortage of medical practitioners. A temporary alternative has been to contract civilians for several months’ work in military hospitals like Kandahar. A civilian radiologist on an overseas contract for a few weeks can cost the Canadian taxpayer $5000 per day and create unwanted tension with lower paid uniformed medical officers.161 This work force erosion could understandably cause other governments to resist recruitment that draws on their more specialised personnel. The problem of attrition also affects other, non-military arms of government. The large American firm DynCorp has attracted scores of US border guards for work in Iraq, something that provoked the public consternation of the Arizona and New Mexico governors.162 If stronger governments like the US are adversely affected, it seems that very few other governments will privilege UN needs above their own national requirements. Another reason for resistance arises from the present unpopularity of military recruitment in several societies and notably the US. Here, labor targets remain unmet and some American officers have publicly suggested that their government forms its own Foreign Legion as military life becomes increasingly unattractive to today’s citizens.163


Radical ideas of this sort are accompanied by growing concern that the commercialisation of military labour is exerting undesirable effects on both morale and military culture. Outsourced firms in the US today develop curriculum and provide military training, so it is at least conceivable that influences other than purely government requirements may colour the content of what is taught.164 Even if this is not the case, few would deny that those virtues military life traditionally extols now compete with the money offered elsewhere.165 There is some evidence that a preoccupation with cash rather than patriotism is causing tension amongst senior US officers.166 This should be expected, as older uniformed personnel react against something they consider subversive. They have a point. Some ex-soldiers working for PMSCs have conducted themselves in a manner which has brought discredit upon an institution that no longer controls them. To coin the language of the market, senior American officers wish to protect ‘the integrity of their brand’.167 On the other hand, career expectations have changed in America’s highly materialist society.168 Today’s US military competes with other employers by offering education and skills to advance a potential recruit’s life after military service. For this reason the armed forces are becoming more of an occupation and less a vocation. A second career is now likely after reaching pensionable age of between one and two decades of service. Hence the old emphasis on selfless devotion to the state is now less noticeable in military advertising. More troubling is the perception by career militaries that their governments seek the support of armed contractors in order to sustain unpopular conflicts. This could foment a decrease in loyalty among regular troops as they become cynical over the purposes for which they are ordered into conflict alongside better paid contractors. Moreover, those contractors are already viewed with competitive suspicion. Pay differences between private security and uniformed US military in Iraq have already been the cause of some antagonism.169 More significantly, if militaries become less anchored to traditional views on their roles in democracies, then military institutions may in turn become less politically reliable. A people, their state and their military have formed the legs of an accepted Clausewitzean framework supporting legitimised violence for well over 200 years. A perception that this political dependability is eroding could easily cause an apprehensive government to respond by limiting the involvement of its citizens in UN contract operations. Should several hundred citizens of one state join a UN contractor, that state’s duty of neutrality may become an unforeseen issue.170 This


is not improbable. Governments of states like Nepal and Fiji consider the export of skilled soldiers to be a respectable industry. A small belligerent government resisting UN humanitarian intervention may recognise that the bulk of those soldiers professionally destroying its forces were of a particular nationality and ethnicity. Instead of directing its resistance to the UN or its contractor, it might by-pass both and strike at the state source of this largely homogeneous labour. Bombings in capital cities – say, Suva or Kathmandu – could apply suitable pressure. In response, the government of the donor state may take an abruptly conservative view of the liberties its citizens might exercise. The freedom to earn larger sums of money in private employment carries other consequences. Losing those traditionally paid from the public purse represents the loss of a considerable investment. Training at taxpayer expense can easily be valued at hundreds of thousands or even several millions of dollars in the case of fighter pilots.171 These personnel have to be replaced in a cycle which becomes shorter than is desirable while delivering additional costs to taxpayers. The public and their elected officials have begun to observe a circular process that has drawn much comment: taxpayer dollars are spent on training service personnel who then leave and hire themselves back to the government which bore the cost of their training in the first place. Moreover, the government finds itself paying a higher rate for those skills from the same personnel when they were uniformed military.172 This is exactly what is happening in the US intelligence community. CIA employees have resigned early to return as higher-paid private sector contractors – to the public unease of the Director of Central Intelligence, General Hayden.173 The general is wary of his agency becoming what he called ‘…a farm system for contractors’.174 If some of these CIA personnel offered say, analytical services to a UN contractor offering higher pay, this may provoke resistance from the US government. These workers would be lost to another entity, their training having been subsidised by the US taxpayer. Other states possessing advanced military/intelligence communities could be in a similar position. There is another aspect to this argument. States which oversee costly and sometimes sensitive military training175 not only lose their investment but also some of their control over how this investment is utilised. A monopoly over pay packets, pensions and superannuation has until recently been a decisive influence over individual conduct. Historically this has provided states with firm control over the lives of men and women trained to inflict harm on others through


state-of-the-art means. No government takes lightly the idea of several hundred of its more lethal employees being re-deployed at their own volition to serve an institution over which their government does not exercise control. Notwithstanding ubiquitous secrecy agreements, governments may be concerned that allowing employees to become UN contractors could risk weakening institutional loyalty.176 It does not matter that their nationals’ purposes may be ethically defensible. Retaining a fraying monopoly of control holds a strong appeal for many governments. The particular means through which governments may attempt to restrict recruitment are not difficult to envisage. Statutes which prohibit recruitment of citizens to fight in foreign conflicts are common enough amongst modern states.177 Even so, these same governments could find themselves restrained from directly obstructing their citizens’ intentions. This is at least a possibility should the Security Council avail itself of its coercive authority to encourage recruitment to a contractor in order to maintain international peace and security. Restraint of states’ restrictions on recruitment could probably be engineered via an inventive application of Chapter VII powers. Even without this possibility, a UN/PMSC experiment would inevitably create tension between the UN, a contract company and governments of states whose nationals are likely to be recruited to the detriment of national capability. The persuasion exercised by states’ negative propaganda can be formidable. The Australian government condemned the Sandline operation in Papua-New Guinea through unconvincing talk about ‘endangering a peace process’.178 This was for some time disingenuous. ‘Peace process’ was an euphemism for continuing low intensity warfare and the Australian government’s unease was not the product of concern felt for a few dozen lives lost on Bougainville, whatever their nationality. The Australians were more concerned over the Indonesian view as to what a mercenary presence might have meant for Indonesian policies and interests. Jakarta’s posture could have shifted should PNG have been destabilised – or perhaps, increasingly de-stabilised – by the political upheaval the mercenaries and their small war might have brought.179 The Australian government was also noteworthy for a smaller hypocrisy, having earlier allowed Australian mercenaries to pilot several military helicopters donated by the Australian government to PNG. These were deployed in the Bougainville theatre as gunships.180 None of the Australian aircrew faced censure or penalty in their home state. Nor was government opposition to Sandline questioned by the anti-


mercenary Australian press, which collaborated in cementing public opinion behind the government. Dusting off the mercenary ordure was and remains a potent tool with which to influence public debate. Until relatively recently the West has watched with a generally indifferent gaze as parts of the third world have weakened.181 However, affluent UN members now contemplate their own unwelcome wave of domestic disruption. Radicalised Islamic minorities are increasingly vocal in their empathy with violent struggles Moslems face elsewhere. Some first-world states may become wary of losing limited resources to private contractors at a time of increased subversion and occasional political violence within their borders. A changing climate since 9/11 has imposed escalating budgets and expanded personnel targets within intelligence and security services. Finding the labour to staff the military segment of these bureaucracies could become a sensitive issue. In several affluent states, ranks of uniformed volunteers are proving increasingly hard to fill.182 Regardless, few Westerners are willing to tolerate conscription to their armed forces as an alternative. Again, retention of existing personnel is a persuasive reason to resist recruitment to a UN contract legion. More generally, this instability at home may cause the West to respond by husbanding resources and hardening its resolve against internationalist arguments supporting multilateral engagements. This could result in mounting disapproval of UN PMSCs as advanced states define an increasingly narrow opinion of their UN obligations in support of this change. Conservative Western governments may emphasise these newer problems to nervous domestic constituencies. Meanwhile, those struggling under various tyrannies in poor and desperate states seem likely to receive assistance only to the extent that measures provided supply a perceived and narrow advantage to the security of wealthy Westerners. The consequence would be that the prosperous would distance themselves still further from those whose welfare has traditionally been of little concern to the more fortunate in any case. A shift away from the UN as a means of global betterment has been noticeable for some time in states which in the past supported the UN and its ideals.183

4.9

The UN and resistance to change

Should the UN decide to select a military services provider in the future, contractors will find it necessary to convince international civil servants and states’ representative of the merit in hiring their services


rather than those offered by competitors. Due diligence would very likely include an assessment of corporate and (more commonly) individual military competence. A combat veteran should be appraised in light of his/her military training and effectiveness, tempered by evidence of conformity with the rules and customs of war. However, there may be another, less welcome criterion. And it may prove more burdensome and subjective, springing from the institutional memory of the UN Organisation and an historical antipathy nurtured by some members.184 Whereas contract peacekeepers would almost certainly encounter ideological opposition, more polarised views would challenge the recruitment of combat personnel and their employers. A progressive perspective behoves the author to briefly assess the debate and arrive at a defensible conclusion. The most effective private military company of recent times was probably ‘Executive Outcomes’. Scott Fitzsimmons has described how EO in Angola and Sierra Leone displayed three attributes indispensable to enforcement of security guarantees the UNSC might one day seek to impose: an ability to transport an intervention force swiftly to and within a conflict zone; to project force against belligerents where necessary; and a willingness to absorb some casualties when demonstrating resolve.185 Fitzsimmons does not draw inappropriate comparisons between UN operations and EO deployments. He does contrast aspects of poor performances by UNAMIR in Rwanda and UNAVEM III in Angola. The worth of EO’s superior training, equipment and discipline suggests inviting possibilities for improved UN operations. Nevertheless, envy of EO’s martial prowess does not adequately explain the disapproval exhibited by those who would reject modern contract forces in UN service. Critics widely assert that payment through extractive resource concessions to related parties was fundamental to EO operations. They maintain that wherever extractive resources are attractive, this motive will accompany the presence of private forces. EO related entities ‘Branch Energy’ and ‘DiamondWorks’ are alleged to have exploited these mining concessions in the past. Although a broad range of secondary sources support this thesis,186 the allegation is strenuously denied in the Sierra Leonean context by Sandline commercial adviser and EO consultant Michael Grunberg,187 while EO founder Eeben Barlow denies the allegation categorically.188 A resource-based system of partly covert rewards seems at least possible in light of the web of companies of which EO was allegedly one component. Resource extraction as partpayment for security-related services also raises a legitimate query as to


the nature of state retreat from sovereignty, particularly in light of transnational corporations’ record of generally chequered human rights conduct in poor states.189 While the effects of private military intervention were beneficial in Sierra Leone and Angola, the corporate interests responsible viewed stability as valuable only in so far as involvement in violence leading to this stability generated profit. A PMC may create socially constructive circumstances. Equally, it may not. The point is that a PMC is not necessarily an ideological ally of democracy or any other kind of government. And if one accepts the thesis Stevens called the ‘militarised commerce’ of diamond mining in Angola by EO affiliate DiamondWorks, this could prove a model for future corporate conduct in extractive industry within collapsed states. Although EO’s military effectiveness shortened the conflict in this state, Stevens emphasises the militarised defence of assets, effective bribery and exclusion of indigenes from the bulk of the benefits obtained.190 This view concludes that extractive industry removes part of a nation’s capital and very probably places it in the hands of a few foreigners identified as neo-colonialists. Control of such wealth is thought to provide an unhealthy political influence which no modern nationstate should tolerate. If this analysis is accurate, the principles of political economy one might glean are at least unsettling. PMCs in Africa might be viewed as a free market tool of an increasingly globalised economy through which foreign shareholders rather than a distressed citizenry are likely to determine what is done with national wealth. If it is true that the price of security has been consideration in the form of rights to exploit assets of considerable value, one is at least bound to include the value extracted in assessing the genuine price paid for services rendered. Industry critic A-F Musah goes further, viewing ‘illegitimate’ resource appropriation as a cause of continuing asymmetric warfare in Africa.191 Exactly how one identifies illegitimacy seems somewhat difficult. This is because Musah’s conviction depends largely on expectations attached to legitimate sovereign authority. And that may in practice amount to the exercise of executive power by an illiberal clique whose major purpose is to reward itself with extractive booty. Stevens’ hypothesis nonetheless presents two plausible propositions. First, an international corporation in a host state with a history of violence aggravates this bloodshed by funding military goods for a warring faction which could not otherwise afford them.192 Second, the company is likely to employ violence to defend its interests, provoking one or more of the warring factions,


which may raise the risk of more violence among disgruntled indigenes.193 More specifically, he alleges that EO would remove UNITA from a diamond concession zone and in return the government would grant this area to DiamondWorks.194 Singer makes a similar allegation.195 The counter-argument is predictable: company representative denials coupled with the military success at modest cost which EO delivered to the Angolan government over 1993–94 and parts of Sierra Leone during 1995–96; and thousands of lives preserved into the bargain. These are certainly compelling reasons to view the company’s work with some favour. Survivors of Revolutionary United Front sadism are likely to agree with some enthusiasm. They are unlikely to have objected in principle to sharing their nation’s estate with transnational corporate interests (real or otherwise) when contemplating the alternative: the particularly disagreeable consequences of a victorious insurrection by the most uncivilised RUF. Nor is it reasonable to blame EO for the resumption of violence which ensued once the company was forced to leave without being paid fees properly due.196 The argument identifying and opposing corporate military and distressed state collaboration is plausible but does not settle the matter. With or without extractive remuneration, the decisive use of corporate violence in Sierra Leone put down an insurgency which enjoyed almost no popular support; and EO proved pivotal in ending a lengthy and debilitating war in Angola. The argument over whether the Kabbah and Angolan governments did or did not trade resources has acquired exaggerated importance. More important is the premise that it is not reasonable in principle to condemn a government for choosing to exert its sovereign authority to use cash or barter resources in return for genuinely effective security provided in a professional manner. Exercising the prerogative to do so is a legitimate act of executive government in meeting obligations to maintain the security of the state. This is reasonable where sovereign forces prove insufficiently numerous, are poorly trained, ill disciplined, corrupt, collaborate with the enemy or otherwise form a threat to this security. Ironically, the two African campaigns above concluded years ago and newer veterans are likely to have learned their trade in Afghanistan, Iraq or the Palestinian occupied territories. Their familiarity with geography, language, culture and fighting methods would be valuable in future UN operations. They may also attract political censure precisely because of their mix of experience, nationality and ethnicity. Israelis and South Africans spring to mind. Belgians, French and ex-legionnaires, British and Americans may also prove unpopular. All may be viewed as neo-


imperial assets of a Security Council excessively influenced by American agendas. This is not a view lacking merit. However, on balance it would seem self-defeating for a future UN to discriminate against individuals, companies or consortia because of their indifference to tenets of antiPMSC dogma. Moreover, one expects that during selection diligent research would locate evidence in relation to applicants of any background who may have been involved in human rights abuses. The abiding issue is that there is still no dedicated means through which the UNSC might secure some of those human security goals the immediate past Secretary-General and his colleagues so ambitiously and publicly declaimed. The prospective benefits of a corporate adjunct will not be assessed fairly until constructive possibilities are perceived as more valuable than lessons imbued by an institutional memory which sustains historically entrenched antagonisms.

4.10

Summary

The UN and its Security Council today contemplate commercial opportunities which portend some constructive possibilities. Engagement with the newer corporate providers also carries risks, several of which both governments and UN organs find daunting for plausible reasons. These risks arise from differences between state and corporate goals; dangers inherent in international commerce; hazards peculiar to armed conflict and the mercurial nature of markets for military goods and services; moral hazards which have endured from ancient times to the present; the possibility of intransigent opposition amongst some states; and equally obdurate resistance arising from a wary institutional culture at the UN. Any of these could individually or collectively extinguish future attempts to engage UN contract forces. Although these matters invite caution, they are not necessarily fatal to a UN experiment in military contract labour. They nonetheless suggest challenges that invite further scrutiny. The following chapter addresses particular strengths and weaknesses demonstrated by the private sector. Notes 1

The meanings of terms used here are not self-evident. One analyst suggests that privatisation involves transferring responsibility for planning, organising, financing and management of a program to private contractors. In contrast, ‘outsourcing’ involves contracting military support services to outsiders while retaining responsibility for these within the military. See W. Mitchell, ‘Privatizing Defense. Britain Leads the Way’, National Center for Policy Analysis/Brief Analysis No. 391 viewed on


2

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2 April 2005 at . Others identify an intentional ambiguity in the privatisation debate, suggesting that terms identify selective government practice in order to conceal a more radical posture. See H. Feigenbaum, J. Henig, C. Hamnett, Shrinking the State Cambridge Uni Press (Cambridge 1999) pp. 5–6. J.E. Thomson, Mercenaries, Pirates and Sovereigns. State Building and Extraterritorial Violence in Early Modern Europe Princeton Uni. Press (New Jersey 1994) p. 4. D. Avant, The Market for Force Cambridge University Press (Cambridge 2005) p. 30. J.E. Thomson, ‘State Practices, International Norms and the Decline of Mercenarism’, International Studies Quarterly Vol. 34 No. 1 (March 1990) at p. 33. There is a bounty offered by the US govt. for the capture of al Q’aeda leaders. See the US Dept. of State ‘Rewards for Justice Program’ at viewed 14 Oct. 2006; also the US Constitution and authority to issue ‘letters of marque and reprisal’ at Art. 1 s. 8. A measure of the plausibility of this thinking is US House of Representatives Congressman Ron Paul’s proposal for two acts: the Air Piracy Reprisal and Capture Act of 2001 (HR 3074) and his September 11 Marque and Reprisal Act of 2001 (HR 3076). See viewed 14 Oct. 2006. R. Mandel, Armies Without States: The Privatization of Security Lynne Rienner (Boulder Colorado 2002) p. 1. For a discussion of the pertinence of the US War Crimes Act 1996 18 USC 2441 and the US Military Extraterritorial Jurisdiction Act 2000 Public Law 106–523 Amended Title 18 USC, see D. Isenberg, A Fistful of Contractors: The Case for a Pragmatic Assessment of Private Military Companies in Iraq British American Security Information Council Research Report (2 Sept 2004) at pp. 62–7. P. Griffiths, The History of English Chartered Companies Ernest Benn Ltd (London 1974) p. xi. See Infra ch 5.5.6. On corruption at a personal level, see L.S. Sutherland, The East India Company in Eighteenth Century Politics Clarendon Press (Oxford 1952) pp. 54–5. More generally, see Chapter IX: ‘The Passing of the Regulation Act.’ Other chartered companies collapsed when their monopoly privileges were revoked. The English East India Company is one example. See also Thomson, Mercenaries, Pirates and… p. 99. This was the Dutch East India Company. See Thomson, Mercenaries, Pirates and… p. 97. D. Hedpeth, ‘13 Billion In Iraq Aid Wasted or Stolen, Ex Investigator Says’, The Washington Post (23 Sept. 2008) p. A19. Sutherland, The East India Company… p. 4. In return they contributed to the public purse and the companies became major creditors to states in a system of funded debt. See pp. 5–6. K. Silverstein, ‘Privatizing War’, The Nation (28 July 1997) p. 1 viewed on 29 Sept. 2005 at .

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In the USA the trade is controlled via the Arms Export Control Act and Export Administration Act. See H. Howe, ‘Global Order and Security Privatization’, Strategic Forum National Defense University No. 140 (May 1998) p. 5. M.N. Pearson, ‘Merchants and States’, being ch. 2 in J.D. Tracy (ed.) The Political Economy of Merchant Empires Cambridge Uni Press (Cambridge 1991) at pp. 92–3. For background on merchant empires including nonEuropean, see J.D. Tracy (ed.) The Rise of Merchant Empires Cambridge Uni Press (Cambridge 1990). Other sources of funding are sometimes found. This was the case with several Islamic states’ funding of the MPRI contract in Bosnia. Weber described this claim as essential. See M. Weber, The Theory of Social and Economic Organization Translated by A.R. Henderson & T. Parsons William Hodge & Co (London 1947) pp. 141 & 143. K.J. Holsti, International Politics: A Framework for Analysis Prentice Hall 7th ed (Englewood Cliffs New Jersey 1995) p. 85. Costa Rica and Iceland are two exceptions to the rule. Montevideo Convention on Rights and Duties of States 1933 (1934) 165 LNTS 19 at Art 1(c). A. Giddens, The Nation State and Violence (being Vol. 2 of A Contemporary Critique of Historical Materialism) Polity Press (Cambridge 1985). See pp. 121, 282 for helpful definitions; a chronology of state development emphasising the importance of the industrialisation of war at pp. 3–5; and some thoughts (although dated by the end of the Cold War) on the nation-state, industrialism and the military at pp. 244–54. These include growth in international organised crime and within states, a flowering of vigilante groups, survivalist enclaves and privately policed, gated communities. These developments have been accompanied by a proliferation of small arms amongst certain civilian populations, notably that of the US. See R. Mandel, ‘The Privatization of Security’, Armed Forces and Society Vol. 28 No. 1 (Fall 2001) pp. 129–30. Mandel, The Privatization of… p. 129. United Nations Charter 59 Stat. 1031, TS 933, 3 Bevans 1153 at Arts. 39–42. This is a point emphasised by a prominent industry critic. See P.W. Singer, Corporate Warriors: The Rise of the Privatised Military Industry Cornell Uni Press (Ithaca & London 2003) p. 18. Cf. R. Marshall, ‘Militarizing P3s: The State, New Public Management and Outsourcing War’, Paper presented at the Annual Meeting of the Canadian Pol. Sci. Assoc. York Uni (Toronto 27 May–3 June 2006). For some more recent thoughts on violence and state formation through an historical perspective, see J. Berndtsson, ‘Private Military Companies and the Privatisation of Violence and Security’, (Rethinking the Monopoly of Violence and the Role of the State) Paper presented at the International Studies Association Conference (San Diego March 2006) at pp. 15–16. J. Spear, Market Forces: The Political Economy of Private Military Companies FAFO New Security Programme, Report 531 (2006) p. 14. H. Wulf, Internationalizing and Privatizing War and Peace Palgrave Macmillan (Hampshire UK 2005) p. 41.


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A-F. Musah & J.K. Fayemi, Mercenaries: An African Security Dilemma Pluto Press (London 2000) p. 4. T. Koppel, ‘These Guns For Hire’, New York Times (22 May 2006) viewed on 23 May 2006 at . L.W. Serewicz, ‘Globalisation, Sovereignty and the Military Revolution: From Mercenaries to Private International Security Companies’, International Politics Vol. 39 (March 2002) at pp. 75–89. For general remarks see M. Desai, ‘Public Goods: A Historical Perspective’, in I. Kaul, P. Conceicao, K. Le Goulven & R.U. Mendoza, Providing Global Public Goods: Managing Globalization United Nations Development Program (New York 2003) at pp. 68–9. Executive Outcomes’ troops were sourced from units which had a doubtful future in the majority ruled South Africa in light of their earlier prominence in fighting insurgents. Eg, 32 Battalion, Koevoet, the Paratroop Battalion and the Reconnaissance Commandos. See G. Cleaver, ‘Subcontracting Military Power: The Privatisation of Security in Contemporary Sub-Saharan Africa’, Crime, Law & Social Change Vol. 33 (2000) p. 139. N. Matziorinis & P. Nalin, Private Military Companies: Legitimacy and Accountability McGill Uni Management (Montreal 20 April 2004) p. 8. The application of information technology to militaries is leading advanced states to new ways of planning ‘network-centric’ warfare. Command, control, communications, computers, intelligence, surveillance and reconnaissance (or C4ISR) are linked to greatly enhanced effect. E. Krahmann, ‘Conceptualizing Security Governance’, Cooperation and Conflict Vol. 38 No. 1 (2003) pp. 9 & 11. Although it would be specious to suggest that American power is not primarily the product of a defence budget that dwarfs all others. For 2006 it was $419.3 billion. Whitehouse site viewed on 11 Nov. 2006 at . J. Swain, ‘Making a Killing’, Sunday Times Magazine (23 Oct. 2003) viewed on 23 Oct. 2003 at . The British spent over £110 million on private security in Iraq over 2003–05. See V. Morgan, ‘£100M Spent on Iraq Private Security Firms’, Press Association Newsfile (27 Feb. 2006) viewed on 29 Feb. 2006 at . Col. Sam Gardiner, USAF (ret) quoted in J. Mayer: ‘What Did the VicePresident Do for Halliburton?’ / Letter From Washington, New Yorker (Feb. 16 & 23, 2004) viewed on 9 Feb. 2004 at at web p. 9. Quoted in Mayer, ‘What Did…’ web p. 9. This military campaign is best seen against the background of other operations since 2001 in which a remarkable 500,000 reservists had served in the ‘war on terror’ by 2006. See J. Garamone, ‘Commission to Examine Use, Funding of Reserve Components’, American Forces Press Service (6 March 2006) viewed on 6 March 2006 at . Eg, R. Norton-Taylor, ‘Blair-Bush Deal Before Iraq War Revealed in Secret Memo’, Guardian Unlimited (3 Feb. 2006) viewed on 12 Feb. 2006 at .

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R.W. Cox & D. Skidmore-Hess, US Politics and the Global Economy Lynne Rienner (Boulder Colorado 1999) pp. 1–2. For an example of the public face of contracting see the CACI site viewed on 10 May 2005 at . Wulf, Internationalizing and Privatizing… p. 184. R.B. Hall & T.J. Biersteker, ‘The Emergence of Private Authority in the International System’, ch. 2 in R.B. Hall & T.J. Biersteker, The Emergence of Private Authority in Global Governance CUP (Cambridge 2002) at pp. 4–5. I. Clark, Globalization and International Relations Theory Oxford Uni Press (Oxford 1999) p. 116. J. Peckenpaugh, ‘Contract Workforce Grows as Civil Service Shrinks’, <www.GovExec.com> (4 Sept. 2003) viewed on 23 May 2006. The figures remain disputed to some degree. See M. Hardy, ‘Study: Contractors Outnumber Fed 4-to-1’, (16 Oct. 2006) viewed on 17 Oct. 2006 at . Mindful that Clark distinguishes strong states as the subjects of globalisation, whereas quasi-states are its objects. See Clark, Globalization and… pp. 111–12. See J. Hooper, Bloodsong! HarperCollins (London 2002) esp. chs. 3 & 4. Although now recently dated, outsourcing policy of that era was explicitly described in US Army Field Manual FM 3-100.21 (100–21). ‘Contractors on the Battlefield’ (Jan 2003) Headquarters, Dept of the Army. See (un-numbered) Preface. For a journalistic observation see N.D. Schwartz, ‘The Pentagon’s Private Army’, Fortune (17 March 2003) pp. 102–8. ‘Globalisation’ enjoys a heated political debate of its own, being contested in origin, ideological meaning and empirical evidence. The author here employs a state-centric approach. For alternative definitions, see J.H. Mittelman, The Globalization Syndrome Princeton Uni. Press (New Jersey 2000) pp. 5–7. For the currents of the debate on globalization see C. Hay & D. Marsh, Demystifying Globalization Macmillan (Basingstoke 2000) at ‘Introduction: Demystifying Globalization’, pp. 1–14. See viewed on 29 April 2005. For three accounts of the Sandline contract in Papua-New Guinea see S. Dinneen, R. May & A.J. Regan, Challenging the State: the Sandline Affair in Papua New Guinea Pacific Policy Paper 30 Paragon Printers Aust Nat Uni (Canberra 1997); S. Dorney, The Sandline Affair ABC Books (Australia 1998); and M.L. O’Callaghan, Enemies Within Doubleday (Sydney 1999). Private security has expanded across borders with fewer difficulties than in the past. See A. Leander, ‘Global Ungovernance: Mercenaries, States and the Control over Violence’, Copenhagen Peace Research Institute Working Paper (2002). Viewed on 17 June 2002 at . H. Howe, ‘Global Order and the Privatization of Security’, Fletcher Forum of World Affairs Vol. 22 No. 2 (Summer/Fall 1998) p. 5. A successor British PMC called ‘Northbridge Services’ in 2003 claimed a more ambitious Anglo-American capability: to put a brigade with logistic support on the ground anywhere in three weeks. See J. Lovell, ‘Privatised Military the Way of the Future’ <www.reuters.co.uk> (9 May 2003) viewed on 13 May 2003 at .


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68 69 70 71 72 73 74 75

Howe, ‘Global Order…’ p. 5. For some thoughts on this theme, see B. Moller, Privatisation of Conflict, Security and War Danish Institute for International Studies DIIS Working Paper No 2005/2 (Denmark) at p. 5. Although lacking the US degree of overt state co-operation, British private security is nonetheless unlikely to resist UK foreign policy goals. The Sierra Leone arms-to-Africa affair provided evidence of misunderstanding and confusion, but not necessarily resistance. See Avant, The Market For … p. 173. C. Jones, Britain and the Yemen Civil War, 1962–1965 Sussex Academic (Brighton 2004) pp. 3–4; generally, chs. 5 & 6; and summary pp. 223–7. See the unfortunate ‘Arms to Africa Affair’ at BBC News, ‘Officials “Set Up” Over Arms to Africa’ (10 Nov. 1998) viewed on 25 May 2005 at . P. Tickler, The Modern Mercenary: Dog of War or Soldier of Honour? Patrick Stephens Pub. (Great Britain 1987) p. 16; J.R. Davis, Fortune’s Warriors: Private Armies and the New World Order Douglas & McIntyre (Vancouver 2000) p. 114; D. Shearer, Private Armies and Military Intervention Adelphi Paper 316 Int’l Inst. for Strat. Stud. (London 1997) pp. 34–7; 56. D. Stanglin, ‘Guys With Guns’, US News & World Report (June 16 1997) Vol. 122 No. 23 p. 22. Contra: Singer on Ronco and Airscan breaking US laws at Singer, Corporate Warriors… p. 223. But that is not the same as challenging US policy in a distant land – something more dangerous than merely breaking US law. South African law has since become more restrictive. See Africa News, ‘New Mercenary Law to Put Squeeze on Soldiers of Fortune’ (3 Aug. 2005) viewed on 11 Aug. 2005 at . Quote from Sandline International site viewed on 29 April 2005 at . Hooper quotes EO director Eeben Barlow in interview referring to his discussions with the South African police, revenue and banking authorities in order to be clear as to the lawfulness of his proposed training and combat operations with and on behalf of, the government of Angola. See Hooper, Bloodsong!…p. 63. FBI investigations of Northbridge Services were undertaken over proposals to assist the ‘Liberians United for Reconciliation and Democracy’ or LURD. See B. Zagaris, ‘US Investigates Role of Private Military Company in Liberia’, International Enforcement Law Reporter Vol. 19 No. 10 (Oct. 2003) viewed on 25 Aug. 2005 at . Company site viewed on 25 Aug. 2005 at . P. Cullen, ‘Keeping the New Dog of War on a Tight Leash’, Conflict Trends (June 2000) p. 39. His examples are TeleServices and Alpha 5 in Angola. Singer, Corporate Warriors… p. 223. Singer, Corporate Warriors…p. 223. Singer, Corporate Warriors… at ch. 13. Cullen, ‘Keeping the New Dog…’ p. 39. Singer, Corporate Warriors… see ch. 9. Singer, Corporate Warriors… p. 97.

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D. Isenberg, ‘Corporate Mercenaries’, Asia Times at (19 May 2004) viewed on 29 May 2004 p. 1. C. Johnson, The Sorrows of Empire Verso (2004) paperback ed. p. 142. In Iraq in 2003 private firms maintained each of these and the global hawk unmanned aerial vehicle. See Conflict News (11 June 2003) viewed on 13 June 2003 at . J. Liang, ‘DoD Business Advisers Tell Rumsfeld Military Mail Should Be Outsourced’, InsideDefense.com (18 Oct. 2005) viewed on 20 Oct. 2005 at ; K. Jowers, ‘US Defense Officials Seek Private Help for Overseas Military Mail Delivery’, FederalTimes.com (15 June 2006) viewed on 15 June 2006 at . C. Kinsey, Corporate Soldiers and International Security Routledge (London 2006) p. 100. C. Gentile, ‘Colombia Raid with GIs Raises Combat Issues’, Washington Times (26 March 2007) viewed on 27 March 2007 at . J. Fisher, ‘From Our Correspondent’, BBC Radio 4 (11 Nov. 2006.) It is also noteworthy that for the ECOWAS mission to Liberia the troops were trained by private companies and flown in by private firms. Once in theatre they were transported, housed and supported by commercial enterprises. See D. Brooks & G. Laroia, ‘Privatized Peacekeeping’, The National Interest (Summer 2005) web pp. 3–4 viewed on 22 July 2005 at <www.nationalinterst.org>. P. Apps, ‘Dogs of War Seek More Work, But Also Respect’, Reuters (15 July 2005) viewed on 16 July 2005 at . Eg, viewed on 11 Nov. 2006. Doug Brooks is a Wash., DC industry representative and IPOA President. See e-mail D. Brooks (8 Nov. 2006) to . Ibid. AFP/Brussels, ‘Private Security Industry Set to Double by 2010: Expert’, (13 Sept. 2005) viewed on 14 Sept 2005 at citing C. Holmqvist of the Stockholm International Peace Research Institute (SIPRI). Although only a part is spent on warfare related expenditure, Peter Singer supplied a global revenue figure of $100 billion for private security in 2003. See P.W. Singer, ‘Have Guns, Will Travel’, New York Times (21 July 2003) viewed on 22 July 2003 at ; P. Singer, Corporate Warriors… p. 78; CanWest News Service, ‘Private Military Industry Booming’, Edmonton Journal (Alberta 13 Nov. 2005) p. A2, viewed on 15 Nov. 2005 at . A point made recently in C. Kinsey, Corporate Soldiers and… p. 2. A. Bharadwaj, ‘Privatization of Security: The Mercenary – Market Mix’, Defence Studies Vol. 3 No. 2 (Summer 2003) p. 80. D. Burgess, ‘How do Private Contractors Fit Military’s Mission?’, Richmond Times-Dispatch (22 Aug. 2005) viewed on 31 Dec. 2005 at . D. Brooks & H. Solomon, ‘From the Editor’s Desk’, Conflict Trends (June 2000) p. 2.


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For example, a company may be wound up to suit the interests of shareholders or creditors. It is difficult to imagine how dissolution of the UN could serve the interests of its members. And the dissolution of a state is rarely in the interests of its citizens. The most thorough account of government motives in action is to be found in D.C. Jett, Why Peacekeeping Fails Palgrave (New York & Basingstoke 1999). T. Spicer, An Unorthodox Soldier Mainstream Pub (Edinburgh 1999) p. 41. Singer, ‘Corporate Warriors’/Cornell Uni Press p. 168. A-F. Musah & J.K. Fayemi, Mercenaries: An African Security Dilemma Pluto Press (London 2000) at p. XVI. See also K. Pech, ‘Executive Outcomes – A Corporate Conquest’, being ch. 5 in J. Cilliers & P. Mason (eds), Peace, Profit or Plunder? Institute for Security Studies Pretoria (South Africa 1999) diagrams at pp. 87–8. Or more literally an absence of ‘…threats to the peace, breaches of the peace, and acts of aggression’ – this being part of the title of ch. 7 of the UN Charter. For some mathematical modelling of the firm as a bearer of reputation, see S. Tadelis, ‘What’s in a Name? Reputation as a Tradable Asset’, American Economic Review Vol. 89 No. 3 (1999) at pp. 548–63. For example, former members of Sandline International almost certainly valued the political rehabilitation provided by the Aegis contract in Iraq. This was preferable to the legacy of discomfort generated by the ‘Arms to Africa’ affair and the Bougainville debacle of the 1990s. On the former, see International Crisis Group, ‘Sierra Leone: Time for a New Military and Political Strategy’, Africa Report No 28, (11 April 2001) p. 22. On the latter, see D. Isenberg, ‘Combat for Sale: The New, Post-Cold War Mercenaries’, USA Today Magazine Vol. 128 Iss. 2658 (1 March 2000) viewed on 13 April 2005 at . Nonetheless, it is noteworthy that Colonel Spicer succeeded conspicuously in the Aegis tender for a three year, $US297 million civilian co-ordination contract in Iraq and in a subsequent company acquisition. See J. Boxell, ‘Aegis Defence Adds Rubicon to its Portfolio’, Financial Times (4 Nov. 2005) viewed on 5 Nov. 2005 at . Spicer, An Unorthodox… at pp. 18, 20, 21, 25, 38, 41, 43 & 50. Hence the prominence of intrastate, non-government groups in conflict initiation. This is not recent and has been prominent since World War II. See the study of violent actors 1948–1972 in R.W. Mansbach, Y.H. Ferguson & D.E. Lampert, The Web of World Politics. Nonstate Actors in the Global System Prentice Hall (New Jersey 1976) pp. 274–85. Spicer, An Unorthodox… p. 49. Although concerned with the US agenda, there is much relevance in the documentary by J. Pilger, Breaking the Silence: Truth and Lies in the War on Terror Synopsis viewed on 3 Nov. 2005 at . The primary US vehicle is UNICEF. See I. Kuziemko & E. Werker, ‘How Much is a Seat on the Security Council Worth? Foreign Aid and Bribery at the United Nations’, Journal of Political Economy Vol. 114 No. 5 (Oct. 2006) p. 907. Charter Art. 24 establishes the responsibility of the Security Council to serve the undivided interests of its UN membership.

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Some of these concepts arise in the domestic as well as the international context. Some helpful thoughts emerge from P. Starr, ‘The Case For Skepticism’, being ch. 3 in W.T. Gormley (ed.), Privatization and its Alternatives Uni. of Wisconsin Press (USA 1991). For examples of recurring problems, see T. Deen, ‘UN Probes Peacekeeping Contracts Fraud’, Asian Tribune/Inter Press Service (18 Jan 2006) viewed on 21 Jan. 2006 at . On the problems of agency, see J.D. Donohue, The Privatization Decision Basic Books (New York 1989) pp. 38–9. Supra note 25 ch. 1 Introduction. A point also examined at Supra ch. 2.3 W.M. Reilly, ‘UN Peacekeeping Procurement’, upi.com (22 Feb. 2006) viewed on 24 Feb. 2006 at . S.P. Kinloch, ‘Utopian or Pragmatic? A UN Permanent Military Volunteer Force’, International Peacekeeping Vol. 3 No. 4 (1996). See note 58 at p. 176. Quoted in A. Roberts, ‘Proposals for UN Standing Forces: History, Tasks and Obstacles’, being ch. 5 in D.A. Leurdijk (ed.), A UN Rapid Deployment Brigade: Strengthening the Capacity for Quick Response Neth Inst. of Int. Rel. (Clingendael, The Hague 1995) at p. 35. N. Reynolds, ‘We Can Afford to Equip Our Troops’, The Globe and Mail (17 March 2006) viewed on 17 March 2006 on . I. Bruce, ‘Private Security Staff Plan Strike Over Pay Cuts’, The Herald (29 May 2006) viewed on 30 May 2006 at . R.A. Oppel Jr., ‘Security Company Closes Baghdad Airport Over Pay’, New York Times (10 Sept. 2005) viewed on 10 Sept. 2005 at . J. Finer, ‘Financial Dispute May Disrupt Iraq Airport Security’, Washington Post Foreign Service (1 July 2006) p. A18 viewed on 1 July 2006 at . For trenchant and informed criticism of the artificial economics of military production and sales in the US circumstance, see W.D. Hartung, ‘Corporate Welfare for Weapons Makers. The Hidden Costs of Spending on Defense and Foreign Aid’, Policy Analysis The Cato Institute No. 350 (12 Aug. 1999). For a critical appraisal of this and related areas see Federation of American Scientists, Arms Sales Monitoring Project viewed on 25 Nov. 2005 at . Roberts, ‘Proposals for a UN Standing…’ p. 43 para. 13. Roberts, ‘Proposals for UN Standing…’ p. 43 para. 13. National Security Presidential Directive 44 (7 Dec. 2005) viewed on PDF file 8 Feb. 2006 at at pp. 1–5. N.M. Serafino, Peacekeeping and Related Stability Operations: Issues of US Military Involvement (10 March 2005) Update/CRS Issue Brief for Congress at ‘Summary’. C. Daniel & G. Dinmore, ‘Bush Puts Rice in Charge of Reconstruction’, Financial Times (15 Dec. 2005) viewed on 17 Dec. 2005 at .


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P. Jelinek, ‘Postwar Iraq Chaos Blamed on Poor Planning’, Associated Press (27 Feb. 2006) viewed on 10 March 2006 at . US Dept. of Defense Directive No. 3000.05 (28 Nov. 2005) at para. 4.1 viewed on 8 Feb. 2006 at <www.dtic.mil/whs/directives/ corres/pdf/ d300005_112805/d300005p.pdf>. See M. Sappenfield, ‘New Military Goals: ‘Win the ‘Peace’, Christian Science Monitor (16 Dec 2005) viewed 17 Dec. 2005 at . S.R. Berger & B. Scowcroft, ‘The Right Tools to Build Nations’, Washington Post (27 July 2005) p. A21 viewed on 28 July 2005 at . The Pentagon ‘Quadrennial Defense Review’ provides uncertain adequacy of organisation and manpower. The dedicated State Dept. budget is also tiny. See G. Scoblete, ‘How Many Iraqs?’, TCS Daily (31 Jan. 2006) viewed on 1 Feb. 2006 at . B. Graham & G. Kessler, ‘Iraq Security for US Teams Uncertain’, Washington Post (3 March 2006) viewed on 4 March 2006 at . N. Hodge, ‘US Considers Private Firms to Protect PRTs’, Jane’s Defence Weekly (14 June 2006) viewed on 15 June 2006 at . US Department of Defense, Quadrennial Defense Review Report (2 Feb. 2006) See Preface pp. v–ix viewed on 25 Feb. 2006 at ; S. Tisdall & E. MacAskill, ‘America’s Long War’, The Guardian (15 Feb 2006) pp. 19–21. National Security Strategy of the United States of America (March 2006) viewed on PDF file on 13 Sept. 2006 at at p. 16. For commentary see S. Gordon, ‘The Changing Role of the Military in Assistance Strategies’, being ch. 3 in V. Wheeler & A. Harmer (eds), Resetting the Rules of Engagement. Trends and Issues in Military-Humanitarian Relations Humanitarian Policy Group/Overseas Development Institute (UK March 2006) esp. pp. 39–41. ‘United Nations Peacebuilding Commission’ site viewed on 8 Feb. 2006 at . There have been several reports of sub-standard instruction under the Vinnell contract to train nine battalions of the Iraqi Army. See Avant, The Market for…pp. 124–5. Avant, The Market for…p. 127 & her note 233. Senior US diplomat Richard Holbrooke called DynCorp’s training program for Afghan police ‘a complete shambles.’ See S. Lekic, ‘Ex-Diplomat Warns Afghan Government Losing Support’, Associated Press (28 April 2007) viewed on 29 April 2007 at . DynCorp may have hired unskilled labour for aircraft maintenance. See K.P. O’Meara, ‘Broken Wings’, Insight Magazine (April 29 2002). Donohue, The Privatization… pp. 101–3. Interestingly, the US Senate and House have recently moved to place limits on outsourced services to the govt. See S. Barr, ‘House, Senate Trying to Place Curbs on Competitive


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Sourcing’, Washington Post (22 July 2005) viewed on 22 July 2005 at . J.D. Hanrahan, ‘Pentagon Contracting: The Open Money Sack’, being ch. 4 in J.D. Hanrahan, Government By Contract W.W. Norton & Co (New York 1983). Senior military, bureaucratic and political leaders frequently retire into well paying jobs in the private security and military services industry. For half a dozen examples of UK and US personnel see War on Want, Corporate Mercenaries: The Threat of Private Military and Security Companies (2006) at pp. 19–20. See . A.R. Markusen, ‘The Case Against Privatizing National Security’, Governance Vol. 16 No. 4 pp. 477; 492–3. Find a structure claimed to represent a sophisticated extractive business (in which Executive Outcomes was allegedly an integral part) at A-F Musah & JK Fayemi, Mercenaries… p. XVI. D. Hastings, ‘Banned Contractor Soliciting Iraq Deals’, (12 June 2005) Associated Press Online viewed on 14 June 2005 at . Associated Press Worldstream, ‘Private Security Companies in southeastern Europe Often Linked with Organized Crime: Report’ (14 Sept. 2005) viewed on 16 Sept. 2005 at . Axis Information and Analysis, viewed on 5 April 2005 at citing Aftenpost of December 2005 (undated). P. Williams & E.U. Savona, The United Nations and Organized Crime Frank Cass (London 1996). See Introduction and the Naples Political Declaration and Global Action Plan Against Organized Transnational Crime GA. Res. 49/159 94th Plen Mtg (23 Dec. 1994) viewed on 19 May 2006 at . On the importance of South African helicopter and fighter pilots during warfare against UNITA in Angola see J. Hooper, Bloodsong! HarperCollins (2002). K. Silverstein, Private Warriors Verso Books (London 2000) p. 161; P. Singer, Corporate Warriors…/ Cornell Uni. Press p. 220. Thomson, Mercenaries, Pirates and… pp. 59–61. Musah alleges that professional military services have supported rebel groups since 1995. See A-F Musah: ‘Privatization of Security, Arms Proliferation and the Process of State Collapse in Africa’, Development and Change Vol. 33 No. 5 p. 928. The classic of the genre remains A. McCoy, The Politics of Heroin in SouthEast Asia Harper Colophon (1973); also J. Kwitny, The Crimes of the Patriots Simon & Shuster (New York 1988). E. Volkman & B. Baggett, Secret Intelligence Doubleday (New York 1989) pp. 123–6. BBC News, ‘Fears Over UK Forces Readiness’ (June 15 2005) viewed on 15 June 2005 at . CTV.ca News Staff, ‘Canada Losing JTF2 Soldiers to Mercenaries: NDP’, CTV.ca (21 Nov. 2006) viewed on 22 Nov. 2006 at .


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T. Neal, ‘Little Glamour in Iraq Role’, Nelson Evening Mail (17 March 2006) viewed on 14 April 2006 at . I. Bruce, ‘Specialist Forces Move to Jobs at Private Firms’, The Herald (21 March 2006) viewed on 21 March 2006 at . J.W. Crawley, ‘Commandos Leaving in Record Numbers’, Media General News Service (30 July 2005) viewed on 30 July 2005 at ; J.W. Crawley, ‘Stopping a Special Operations Exodus’, Richmond Times-Dispatch (31 Aug 2005) viewed on 1 Sept 2005 at . S. Rayment, ‘Dwindling Infantry Offers Troops £6000 to Re-Enlist’, The Telegraph (22 Jan. 2006) viewed on 23 Jan. 2006 at . These range from C$7,500 to C$39,576. See K. Harris, ‘Special Ops Tough Task’, Ottawa Sun (21 Nov. 2006) p. 7 viewed on 27 Nov. 2006 at . M. Lea, ‘£15k Pay Rise for SAS Men’, The Sun (England) (7 Aug. 2006) viewed on 8 Aug. 2006 at . C. Leake, ‘A Gap Year for the Soldiers of Fortune’, Mail on Sunday (2 April 2006) viewed on 22 April 2006 at . M. Tutton, ‘Military Docs Leave for Private Agency Hired to Recruit Civilians for Bases’, Canadian Press (5 Dec. 2002) viewed on 7 Dec. 2002 at . T. Blackwell, ‘Dr Temp Goes to War’, National Post (1 March 2007) viewed on 8 March 2007 at . M. Benson, ‘Company Recruiting Border Agents for Iraq’, The Tucson Citizen (19 May 2007) viewed on 29 May 2007 at . W. Long, ‘Its Time for an American Foreign Legion’, International Herald Tribune (1 March 2006) viewed on 4 March 2006 at . Avant, The Market for… p. 120. P. Marx, ‘Private Military Companies: Handle With Care’, Proceedings of the United States Naval Institute Vol. 131 Iss. 2 (Feb. 2005). C. Johnson, The Sorrows of Empire Verso (London 2006) paperback ed. p. 142. Contra: see S.G. Nitzschke, ‘The Adaptable Force: Privatization and the Public Military’, Information Age Warfare Quarterly Vol. 1 No. 1 (Winter 2005) pp. 10–20. For a British perception see D. Donald, After the Bubble: British Private Security Companies After Iraq RUSI/Whitehall Paper No. 66 (2006) p. 34. C. Williams (ed.), Filling the Ranks: Transforming the US Military Personnel System MIT Press (Boston 2004) pp. 10; 309–10. R.A. McCartan, ‘George Bush’s Soldiers of Fortune’, OpEd News viewed on 26 Aug. 2005 at ; J. Scahill, Blackwater: The Rise of the World’s Most Powerful Mercenary Army Nation Books/Avalon (New York 2007) p. 100.

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Thomson, Mercenaries, Pirates and… p. 55 for the same question placed in an historical perspective. British ‘initial flying training’ for a trainee in 2000 was valued at £3.8 million. ‘Operational training’ for the frontline fighter GR1 Tornado has been valued at an additional £1.9 million. See UK Ministry of Defence/ Report by Comptroller and Auditor General, Training New Pilots House of Commons UK (28 July 2000 printing.) Viewed on 29 Oct. 2005 at paras 12 & 13. See Avant, The Market for… p. 132. Also p. 127 & her note 230. K. Schrader, ‘CIA Reviewing Use of Contractors’, Associated Press Online (19 Sept. 2006) viewed on 20 Sept. 2006 at . R. Willing, ‘Contractors Playing Major Role in US Intelligence’, USA Today (26 April 2007) viewed on 27 April 2007 at . For example, skills like information warfare would be highly prized amongst organised crime syndicates. W. Pincus, ‘Contracting of Intelligence Jobs Raises Concerns’, New York Sun (21 March 2006) viewed on 30 March 2006 at . Thomson, Mercenaries, Pirates and… table 4.2 at pp. 80–1. The Opposition spokesman memorably ranted over ‘Rambo-like assassins’. See S. Roggeveen, ‘The Case for the Mercenary Army’, Australian Defence Force Journal No. 126 (Sept./Oct. 1997) p. 50. D. Shearer: Private Armies and Military Intervention Adelphi Paper 316, Int. Inst. for Strat Stud. (London 1997) p. 12. I. Wing, ‘Fighting Other Peoples’ Wars: The Balance Sheet’, being ch. 22 in B. Boeha & J. McFarlane (eds), Australia and Papua New Guinea: Crime and the Bilateral Relationship Australian Defence Studies Centre (Canberra 2000) p. 220. New Zealand pilots had carried out similar tasks a few years earlier. See Rogers, Someone Else’s… p. 228. This decay is a consequence (or perhaps a cause) of the spread of newer forms of what Martin van Creveld calls non-trinitarian warfare and the rise of what Mary Kaldor terms ‘war economies’. See M. Van Creveld, The Transformation of War The Free Press (New York 1991) at pp. 49–62; M. Kaldor, New and Old Wars Polity Press (Cambridge 1999) p. 109. M. Van Creveld, The Rise and Decline of the State CUP (1999) pp. 412–14. Australia is one. See ABC Lateline, ‘UN Not Up to the Task in the Solomons: Downer’ (27 June 2003). Transcript viewed on 29 Oct. 2005 at . This is canvassed at Supra ch. 3.5. S. Fitzsimmons, ‘Dogs of Peace: A Potential Role for Private Military Companies in Peace Implementation’, Journal of Military and Strategic Studies Vol. 8 Iss. 1 (Fall 2005) pp. 1–2. See D.J. Francis, ‘Mercenary Intervention in Sierra Leone: Providing National Security or International Exploitation?’ Third World Quarterly


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Vol. 20 Iss. 4 (April 1999) (web page) 9; C. Clapham, ‘African Security Systems: Privatisation and the Scope for Mercenary Activity’, being ch. 2 in G. Mills & J. Stremlau, The Privatisation of Security in Africa (SAIIA 1999) p. 40; W. Reno, Warlord Politics and African States Lynne Rienner (Boulder Col. 1998) p. 64; J. Selber & K. Jobarteh, ‘From Enemy to Peacemaker: The Roles of Private Military Companies in Sub-Sahara Africa’, Medicine & Global Survival Vol. 7 No. 2 (Feb. 2002) pp. 91, 93; D. Isenberg, Soldiers of Fortune Ltd: A Profile of Today’s Private Sector Corporate Mercenary Firms Center for Defense Information Monograph (Nov. 1997) pp. 7–10; D. Shearer, Private Armies and Military Intervention Adelphi Paper No 316 IISS (London 1997) at pp. 40–53; Pelton, Licensed to Kill… p. 257, although he equivocates at p. 264; J.C. Zarate, ‘The Emergence of a New Dog of War: Private International Security Companies, International Law, and the New World Disorder’, Stanford Journal of International Law Vol. 75 (1998) p. 100; Avant, The Market for… pp. 90 & 142; K. Pech, ‘Executive Outcomes – A Corporate Conquest’, being ch. 5 in J. Cilliers & P. Mason (eds), Peace, Profit or… pp. 82–4 & 90; Spear, Market Forces: The Political… Section 2; Sheppard, ‘Footsoldiers of the New…’ pp. 4–5. M. Grunberg, ‘Letter to Brown Journal of World Affairs Re Inaccurate Article’, viewed at ; and reproduced on 5 June 2002 at ; on Grunberg’s identity and status, see e-mail from <[email protected]> at (7 June 2002). Well before Sandline’s demise its then CEO in 1999 appeared to equivocate over whether or not the company would accept diamond concessions in payment. See Spicer, An Unorthodox… pp. 24–5. E. Barlow, ‘Eeben Barlow’s Military and Security Blog’, 19 Dec. 2008 viewed on 2 March 2009 at . It is commonly argued that transnational companies favour weak states. The latter need revenue and become dependent on external actors which provide foreign direct investment where the alternative is a poor domestic tax base. The resulting ‘rentier’ state elevates the protection of foreign assets to a high priority while indigenous development languishes. See H. Beblawi, ‘The Rentier State in the Arab World’, being ch. 2 in H. Beblawi & G. Luciani (eds), The Rentier State Croom Helm (New York 1987) at pp. 51–2. A. Stevens, Commerce & Conflict: Angola & DiamondWorks Country Indicators for Foreign Policy Project, Carleton University (June 2005) Section III pp. 29–30; 31–43. A-F. Musah, ‘Privatization of Security, Arms Proliferation and the Process of State Collapse in Africa’, Development and Change Vol. 33 No. 5 p. 911. Stevens, Commerce & Conflict… pp. 32–3. The argument carries different emphases in Mandel, Armies Without… p. 39 and ch. 4.

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Stevens, Commerce & Conflict… p. 33. Singer, ‘Corporate Warriors…’, International Security p. 207. Zarate, A New Dog… p. 97.

5 Other Industry Aspects

5.1

Introduction

This chapter continues the theme of risk through a focus on the industry. The second section canvasses a variety of issues: aspects of PMSC business culture, industry costs, corporate notions of human rights responsibilities; the sensitive relationship between a UN company legion and NGO and UN aid providers; contractor co-operation with regional forces’ deployments; litigation risk and the ethics of workers’ compensation in light of mixed experiences in Iraq; corporate influence on a UN security agenda; and speculations as to what forms future industry growth might assume. The third section scrutinises claims made by an industry representative on behalf of his constituency. These claims concern imposing assertions as to capacity; some less than wholly accurate views as to regulation; and a perception of industry legitimacy that may be somewhat expedient. The fourth section concerns a recent industry plan to assist the UN in an African deployment. The proposal is helpful as it enables the reader to consider some particular claims rather than view the industry case in general terms. The fifth section summarises six of the more prominent difficulties that have arisen in recent years, most being more or less of the industry’s making. These include uncertainty over the nature of contractor weaponry; adherence to the spirit of international humanitarian law; employee involvement in arms trafficking and related dealings in controlled materiel; an example of flawed political risk assessment carrying serious consequences; excessive and criminal violence by PMSC employees; along with sharp practice and worse accompanying the battlefield logistics industry. The overall intention is to separate asser140

Other Industry Aspects 141

tion and claim in some of what has occurred; or what seems likely to develop, given the nature of PMSC conduct to date and the direction it seems to be taking.

5.2

Some contractor issues

The motive of business is profit. If adequately paid and given the absence of insuperable difficulties, the private sector can assist the Security Council in peacekeeping and related operations. A corporate adjunct is certainly likely to prove superior where states refuse to act at all. A sceptical onlooker should nonetheless remain wary of the language and mentality of the mercantile creed. Business lobbies tend to speak in a commercial patois. They less commonly lean to iteration of a problem through narration of its particular historic, ethnic, religious and tribal circumstances. This makes it easy to speak or write without communicating a grasp of that matrix of data which constitutes a political situation on the ground. In this way a collapsed state can be crudely categorised within a familiar business discourse. This in turn will favour solutions which private interests are competent to provide. These may or may not be suitable. Other solutions which may be more beneficial by other lights are likely to be excluded.1 There is nothing new in modern companies earning profit from armed conflict. Far fewer have canvassed the risks in extinguishing a conflict. One difficulty is that companies with the relevant skills and equipment hold no political interest in supporting those ‘fledgling democracies’ with which industry lobbyist Doug Brooks apparently sympathises.2 Quite logically, this is why Brooks is at least as keen on commercial as political discourse. Nor should one lose sight of the fact that it is underground capitalism which fuels much of the decay in failed states. Giving a freer hand to legitimate capitalism may or may not correct this situation. Comparative cost is another keenly debated issue. Putting IGOs like the UN to one side for a moment, a primary question would appear to be whether profit-driven corporations carry out defence-related tasks more efficiently and more cheaply than states’ bureaucracies. Is superior efficiency really the reason why the number and size of states’ contractors have risen over the last two decades?3 On one hand, Singer argues that the cost of massive Pentagon outsourcing over more than a decade has not provided what he calls ‘proven comprehensive cost savings’.4 It may be that the market creates distortions which belie claims of economic efficiency.5 On the other hand, the recent


Republican Administration claimed that the US Department of Defense saved billions of dollars through outsourcing over recent years via ‘Public-Private Competition’.6 Industry advocate Doug Brooks takes the view that PSCs and PMCs provide services more efficiently, more rapidly and at a lower cost than states can provide them.7 The logical consequence is that a state’s armed forces garner financial benefits and may re-deploy their workforce, time, money and physical resources saved. He seems correct in some circumstances but emerging evidence supports a more restrictive and less certain view. It seems likely that the American taxpayer saves money where there is genuine competition.8 Otherwise, cost effectiveness appears demonstrable in some circumstances but inconclusive in others.9 This uncertainty need not be an impediment. The reason is that competitive cost is not necessarily a primary criterion for UN purposes. Nor is it imperative for states. Professor Avant suggested that in Iraq the US government sacrificed genuinely competitive markets and contractor flexibility to preserve reliability and continuity of service.10 This principle is even more pertinent to the UN because a Security Council request for donors to a new operation is very likely to meet with an inadequate response. In the American case, the US ‘Government Accountability Office’ has criticised the allegedly high cost of private security which defends other contractors in Iraq.11 In Stephen Schooner’s view, US government decisions on outsourcing have been dictated by political expedience rather than cost. He suggests that hiring private firms in Iraq was never about saving money. It has been concerned with ‘…avoiding tough political consequences concerning military needs, reserve call-ups and the human consequences of war’.12 There is a need in both US and UN examples: a reluctance on Mr Bush’s part to call up more troops when he could draw on industry to carry out some tasks; and where the lack of donors amongst UN members propels a search for other sources of international military labour. In contemplating widening authority held by corporations one also ponders broader corporate perceptions of human rights. A growing movement which includes governments seeks to adapt human rights norms to the corporate sphere and there is no shortage of material.13 The OECD ‘Guidelines for Multinational Enterprises’ is one example.14 The ‘International Labour Organisation’ has set out various recommendations15 and the UN ‘Global Compact’ promotes ten principles to which corporations should aspire in four areas: human rights, labour standards, the environment and anti-corruption.16 Yet some of these


prescriptions would sit uneasily with a military contractor holding responsibilities which intrinsically limit its capacity to comply. Similarly, the UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights17 has limited application in a world of organised violence. For example, a military company could not necessarily observe the laws of the country in which it operates18 as municipal law may retain little or no value in an anarchic space. Moreover, opponents of the UNSC and its agents may try to use local laws as a weapon. Nor could the company provide a safe working environment for employees who stand some chance of being killed or injured in the ordinary course of their duties.19 Placing human rights in quasi-regulatory contexts holds inexact merit in the guidance and organisation of PMSCs. For example, a group of states may persuade companies to adhere to particular standards. The Kimberley Certification Process for rough diamonds is one example in another field.20 Another idea has been an NGO/observer, UK, US, Norwegian and Dutch agreement on principles applied to clients of PMSCs – in this case, multi-national companies in the extractive industry via the Voluntary Principles on Security and Human Rights.21 This approach seems rather limited as it requires voluntariness in both state and company collaboration. Bjorn Moller has suggested that an acceptable list of PMSC customers could be ‘created and amended using public sources and NGO involvement’.22 This seems unlikely for two reasons. Public sources on the topic are notoriously coloured by political purposes. Second, it is doubtful whether criteria would be agreed upon by UN organs and an uncertain number of NGOs serving illdefined constituencies holding perhaps contested claims to legitimacy. One wonders which firm is likely to prove acceptable, to whom and on what basis. One should also remain cautious of those more imprudent prescriptions sprouting from what David Henderson calls ‘global salvationism’,23 by which he means misguided ideas as to the extent to which corporations can address human needs. Nonetheless, several standards could probably be adapted, like the United Nations Code of Conduct for Law Enforcement Officials;24 or the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.25 But law enforcement is a part of civil administration and only one aspect of a wide range of prospective corporate responsibilities. The wider point is that in encouraging adherence to superficially desirable ideas, the well intentioned cannot always envision effects and outcomes with clarity. What the UN should prevent at all costs is hiring a corporate peacekeeper and then


miring it in a pastiche of persuasive resolutions, policy documents of partial application, ill-suited treaties, ideologically driven executive directions and a host of competing standards drawn from within and without the UN. These could easily form a mesh that ensnares rather than a policy which enables. An equally delicate issue is the relationship between a company acting on behalf of the UN and the company’s relationship with humanitarian NGOs and UN organisations operating in a conflict zone. NGOs and UN agencies usually purport to give succour impartially to those in need. Regrettably, humanitarian aid in today’s intrastate conflicts is sometimes manipulated to the advantage of guerrillas, gangsters and warring tribes not given to unblemished observance of humanitarian principles. Aid organisations are increasingly viewed as a resource to be exploited like any other in areas where depriving civilians of vital assistance is often intentional. For example, this occurred to the UNHCR in Bosnia.26 Similarly, NGOs sometimes sustain a population and thereby allow belligerents to devote more resources to a struggle.27 It seems doubtful whether a contractor and the UNSC could tolerate aid organisations attempting to exercise good intentions and instead being coerced to serve the malign interests of those resisting a Security Council mandate.28 As Matthew LeRiche suggests, perhaps the principle of impartiality should in future yield to a collaborative effort in order to resist aid co-option for harmful ends.29 This in turn implies the infliction of effective violence on those who would starve civilians for political gain. And that will require the existence of organised military capability at UNSC fingertips. There is also a question of how well a contractor might be able to coordinate its operations with regional forces. Contrasts may be conspicuous. For example, there have been limited if well publicised efforts to develop African Union forces to the point where they possess a modest ability to function within a regional peacekeeping framework. However, this multi-state force has limited training, inadequate logistic capacity and a restricted supply of modern equipment. The practical value of its performance in Darfur has been very limited.30 Imagine this force finding itself assisted by several battalions of professional UN contractors in a context other than Darfur. The corporate soldiers would probably be largely ex-NATO. They would have contrasting ethnic origins, the latest equipment, better training and vastly superior logistics extending from ordnance supply to their diet. Where contrasts are this stark there could well be some tension. A more general rupture is quite likely where the purposes of a regional force are purportedly


the same as those prescribed by the Security Council, but in reality serve more selfish ends. One is mindful that the record of some African forces is less than faultless.31 In these circumstances a regional organisation might contemplate a corporate presence with something less than comradely empathy. Litigation risk over employee injury or death is another insufficiently explored matter. In US courts ‘Blackwater USA’ has been sued for negligence occasioning death in Afghanistan32 and Iraq.33 Another action involves ‘California Microwave Systems’, an aerial reconnaissance firm deployed by the US government in its drug wars in Colombia;34 while DynCorp faces an action over negligence allegations resulting in death in Afghanistan.35 When members of sovereign forces suffer illness, injury or death on peacekeeping operations, they or their relatives often enjoy access to administrative processes which supply some predictability as to benefits. By contrast, civil litigation involves burdensome costs, uncertain duration and often unsatisfying outcomes that can draw poor publicity to respondent companies. Multiple suits in any business are likely to raise insurance premiums while drawing on investors’ money and diminishing the will to innovate and experiment. The UN might learn from this experience and consider a different approach. One means of attracting talented applicants would be to provide company personnel with injury compensation, medical expenses and death benefits of a relatively attractive standard when compared to those offered by affluent states’ militaries. Contrast the mandatory workers’ compensation and death benefits insurance presently carried by firms operating in Iraq in support of the US government. Evidence compiled early in 2007 in the Office of Administrative Law Judges in the US Department of Labor suggests that several US companies and their insurers have a habit of treating injured employees less than fairly.36 Journalists have also pointed out how the US Defense Base Act ties compensation to a contractor’s wages rather than the cost of quality future care and living expenses in America.37 US House Committee on Oversight and Government Reform Chair Henry Waxman has criticised profiteering by the firm AIG, which provides cover for the large logistics contractor KBR38 in what appears to be an insurance oligopoly funded by US taxpayers.39 Contractors and employees endure other injustices. For example, until a recent change in US federal law, large entities like DynCorp avoided US Medicare and social security taxes by setting up subsidiaries in the United Arab Emirates. American employees who sought redress in civil matters have found themselves


bound by their contracts to pursue remedies in Qatar. For most, this has proved unworkable and expensive.40 Avoidance of this kind of practice would not seem to be difficult in future UN agency arrangements. Corporate management is also aware that their purposes are likely be furthered through the exertion of a formative influence on the UN security agenda. Like other business people looking to finalise lucrative transactions, they are not likely to linger passively. In other words, they would not simply wait to implement mandates created by others. Commercial firms already influence state agendas today through the international collection, analyses and supply of intelligence.41 They train and educate armed forces, including those of the US.42 And American firms lobby with past policy and bureaucratic chiefs on their US boards and within senior management. This encourages a shift in perceptions as to where claims to legitimate knowledge lie. As Anna Leander put it, they seek to exercise an epistemological influence in their field.43 She argues that their purpose is to move power in the security field from the public and state to the private and market; and from the civil to the military.44 They have met with success. Corporations today enjoy escalating influence amongst governments despite lacking that traditional legitimacy which only states command.45 Corporate leaders understandably view Western and particularly US foreign policy as the creator of a market in which the rhetoric of democracy promotion provides tangible opportunities.46 It is likely that they would view the ambitions of the Security Council in a similar light. The nub of the matter is that if private actors influence the spending decisions of governments, then it seems equally reasonable to infer that those same actors will try to influence the spending decisions of groups of governments. One has only to read the Millennium Declaration,47 In Larger Freedom48 or most pointedly, The Responsibility to Protect49 to realise that the UN has agendas which set out the promotion and defence of ambitious international goals. It is often said that UN success or otherwise hinges on the collective will of its members. If this is so then UN organs would appear vulnerable to forces similar to those which sway individual states. This is why it is logically in the interests of contractors to exert influence over the formation of their tasks through the construction of a persuasive version of UN interests. However, that version may not be to the certain betterment of a frequently unresponsive and chronically divided UN constituency. In seeking corporate objectives couched in terms of UN goals, fewer hurdles today restrain CEOs in their pursuit of politically as well as


economically adventurous paths involving state security. Likewise, fewer inhibitions restrain governments from effecting policy through these companies where it suits them to do so. These shifts at least suggest the possibility of an expanded UN brief for private interests in the future. This in turn prompts one to ponder how these firms will evolve. Some indications exist. In the near future more military support and services companies are likely to be absorbed by large corporations. The purchase of MPRI by the Fortune 500 company L-3 in July 2000 was one example.50 The sale of PAE to industry behemoth Lockheed Martin is a more recent case.51 Another is the purchase of Armor Holdings by BAE Systems.52 A growing technical sophistication is another facet. L-3 subsidiary Titan supplies technical support to the US National Security Agency;53 as does CACI to the Defense Intelligence Agency.54 Other L-3 companies are part of the Boeing consortium that was awarded the multi-billion dollar ‘Secure Border Initiative’ – a contract to protect the Canadian and Mexican approaches to the US.55 Particular market segments have also expanded, notably translation. In October 2006 a joint bid led by L-3 competed against a DynCorp tender for US Army translation services valued at $5.52 billion worldwide.56 The sums involved will continue to grow as some firms choose to raise capital from the financial markets. In September 2006 SAIC announced an intention to raise $1.7 billion in a partial move from private to public,57 while the civilian logistics support role remains notably profitable. KBR earned $28 billion from the LOGCAP III contract alone.58 A further development is diversification. Blackwater has expanded into maritime and anti-piracy operations.59 It has started building military airships60 and provides other platforms from a gunship to a Boeing 767.61 Triple Canopy provides vulnerability assessments to corporations.62 In the Arkansas countryside, Olive Group built entire city blocks that faithfully reproduced Iraqi town centres for military purposes.63 And after purchasing Anteon International Inc in 2006, General Dynamics used new skills to build a similar complex in Jordan.64 The scale of deployments may also grow. The Aegis chief executive has pondered how troop withdrawals from Iraq might necessitate a large increase in private contractors required to protect oil, water and power infrastructure.65 This could become feasible as firms become fewer and larger. That shift seems likely to accelerate in response to two forces: industry rationalisation as the boom in Iraq subsides66 and the wider economic contraction of 2009. Gradually,


larger companies will deploy increasingly formidable capabilities while forming close liaisons with states of all kinds – so long as these relations do not disturb Western agendas. These corporate/state relationships will almost certainly be strewn with conflict, but they are also likely to become progressively more entrenched. That close association will further blur an already artificial government/industry division.67

5.3

An industry association

Based in Washington DC, the ‘International Peace Operations Association’ was the first US trade body to represent the interests of companies in what it calls the ‘peace and stability industry’.68 The following three sub-sections examine claims made by the IPOA president or which have been located in his association literature. The first refers to Mr Brooks’ observations regarding industry capacities. The second deals with views expressed by him and his colleagues on the nature of desirable regulation; while the third explores the legitimacy integral to future IPOA member success, whether at the UN or elsewhere. 5.3.1

Capacity

On the early IPOA site one could browse an archive of favourable news articles. Some quoted the president in 2000 arguing a case for the UN to privatise peacekeeping, peace enforcement and what Mr Brooks euphemistically called ‘humanitarian rescue’ operations in Africa.69 His position was supported by ambitious claims. One of these was that all of Africa’s wars could be ‘resolved’ for no greater cost than a very reasonable US$750 million.70 Approving commentaries implied that had the UN deployed contractors to deal with various crises in the past, much suffering would have been avoided. Whether it was the Hutu/ FAR lurking in Eastern Zaire after the Rwanda genocide, the RUF when they entered Sierra Leone, or the Bosnian Serbs as they approached Srebrenica, it seems there has been a practical solution at the UN Secretary-General’s fingertips.71 The industry was portrayed as efficiently purposeful and its capabilities aired with assurance and imagination.72 Member corporations apparently existed to secure investment, protect transport and to assist ‘fledgling democracies’ resist coups, warlords and invasions.73 Speed, professionalism, decisiveness and cost were touted as competitive and affordable.74 The passing of time has exerted only modest pressure on those broad assertions on which today’s industry was founded. In 2009 these claims still prompt various unresolved questions of interpretation and


plausibility. For example, peacekeeping roles to one side, what methods and means might these companies employ in defeating various adversaries in their humanitarian ‘rescues?’ What indicia would identify a settlement where the level of pre-war violence to persons and crimes against property were very high by the standards of more ordered societies? How would IPOA members settle or subdue an intrastate conflict where antagonists may live in the same region, the same town or the same street? For how long should cessation (or at least diminishment) of armed conflict last in order to satisfy another yardstick of success? A bid to ‘end a conflict’ seems likely to carry a contingent meaning, even if a satisfactory outcome has been defined with apparent cogency through an early Security Council mandate. This mandate would presumably have embodied suitably permissive authority. Yet it remains unclear whether coupling this authority with modern technology and military professionalism would disperse violent antagonists, even when combined with the strengths of other UN agencies or NGOs. Nor is it clear that corporate management knows exactly why unsavoury regimes or criminalised insurgents continue to flourish. Put another way, it is not necessarily the case that corporate management possesses the necessary political and cultural education – or for that matter, sufficient interest in acquiring it. Few would doubt that Brooks’ members remain well schooled in the growth of intrastate conflict and a corresponding sense of emergent business opportunity. Take the flat fee concept to extinguish African conflicts. For a purchaser to pay a flat fee in return for delivery of an outcome satisfying agreed criteria within an agreed period may appear attractive. But such a bargain should also deliver bearable risk in a market supplying largely predictable outcomes at broadly predictable costs; and where the qualitative and quantitative risks may be assessed in a meaningful fashion. The problem is that these are requirements armed conflicts rarely provide. And certainty of this nature is manifestly absent in contemporary intrastate wars. Most competing belligerents are likely to believe each will triumph, at least in the early phases of conflict. Consequently, it would seem unwise to publicise a fixed figure for the delivery of an ambitious service of unproven reliability. The risk of failure may be difficult to quantify, but the industry representative does not canvass it. Presumably, to do so would not sit well with his promotional role. The last few decades of mercenary conduct have not been helpful in judging how a future UN contractor might fare. This is just as well. Taulbee and Head studied the results of post World War II mercenary


operations until the mid-1990s and then more recently. Mercenary effectiveness between the de-colonisation era and the evolution of the corporatised form in the 1990s was very patchy, especially during the 1960s and 1970s in the Congo, Nigeria and Angola.75 Deployed numbers of successful contractors in more recent times have also been quite small – 600 in Angola and 300 in Sierra Leone in the case of ‘Executive Outcomes’.76 In both examples EO soldiers successfully augmented, trained and led clients’ troops. But O’Brien makes the point that PMCs have so far not been capable of undertaking actions larger than battalion sized operations and certainly not outside the developing world.77 Recall the ‘Blackwater USA’ claim of 2006 cited in the Introduction. Company representative Mr Cofer Black claimed that the firm was able to deploy a brigade in Darfur. This may or may not have been plausible, but in early 2009 Blackwater is moving away from armed contractor work. This decision may make sense to shareholders in a rapidly changing business climate in America. Yet even relatively brief armed conflicts often run for years. The inevitable question is what would have happened to 5000 Blackwater paramilitaries today if they had been deployed in Africa in 2006. Would their campaign have disintegrated, simply because more restrictive political and economic circumstances in the US may have caused their employer to withdraw? There are other reasons for caution. Although the history of colonial counter-insurgency over the twentieth century was a mostly sobering chronology of recurrent defeat for Western imperialists, the contemporary context is very different. Fewer intrastate conflicts could be termed national liberation or anti-colonial struggles. Several are resource wars with an ethnic aspect. Others mix narco-politics with militant dissent. But none of these changes suggest that deployments in present circumstances are any less hazardous. Future UN adversaries are likely to have learned lessons from the conflicts of the 1990s. For example, opponents could obtain a propaganda advantage by characterising their UN backed foes as neo-colonialists. In expectation of an armed assault sanctioned by the UNSC, shrewd warlords may form covert alliances with corrupt governments of neighbouring states. They may agree to swap diamonds, gold or drugs for arms replenishment, fuel, transport, rest, training, banking facilities and so on. Moreover, if they are fighting for the wealth provided by extractive resources, there is not likely to be a compromise solution. If they lose, they lose all. Retreating warlords would become fugitives before probable capture and perhaps even prosecution on human rights related charges before a modern


tribunal.78 If convicted they are likely to serve lengthy terms of imprisonment. Hence their motivation in fighting is likely to be firm. Nor do the distinctively modern causes of much contemporary conflict justify excessive faith in superior technology, Western organisation and highly skilled manpower. These met with widespread failure where colonial forces sought to suppress third world insurgents of the past.79 And today’s opponents may be more formidably equipped. Future suppliers to IPOA adversaries will probably evolve into bespoke outfitters, keen to meet the needs of tomorrow’s niche war participants. These merchants are likely to equip combatants on the advice of experienced guerrillas.80 They in turn will probably assist in securing a new generation of supplies, paid from better organised, resource fuelled budgets. Much of the materiel required for today’s guerrilla operations is already accessible on global markets. It should not be difficult to purchase recent generation infra-red and thermal imaging devices; prepared foodstuffs; signals equipment with sophisticated encryption; cheap global positioning navigation gear; reliable Soviet designed helicopters suitable for assault, light and medium cargo lift, troop mobility and medevac; less costly but effectively refurbished missiles and obsolete but serviceable artillery; medical assistance including disease prophylaxis, treatment of trauma in the field and airborne evacuation crews; and last, efficient financial arrangements to expedite payment for all of it. Merchandise is likely to include newer items like imagery from commercial space surveillance, Google and small, unmanned drones that supply airborne imaging. As the Tofflers suggest, new technologies are now landing in global markets with a rapidity that is changing the nature of conflict.81 Newer combatants are also likely to be trained by competent military advisers who will be well remunerated through extractive revenue. Their skills and other goods and services are available to the cashed-up belligerent who understands the successful organisation of future violence. In this environment even assessing an adversary’s skills and equipment could prove a challenging task for a group of contractors. The IPOA President did not succeed in sustaining his claim to industry competence in ‘resolving’ Africa’s wars. The difficulty was that Brooks’ vision extended beyond the evidence he employed to support it. By asserting capabilities exceeding limited containment he exaggerated what would otherwise be plausible (and worthwhile) if more modest claims. A reasonable ambition would have been to argue for a capacity to exercise containment and limited military success according to credible criteria in selected examples. To his credit Brooks did


acknowledge that resolving the causes of conflict required skills possessed by other agencies. His industry members would have acted in concert with UN organs, associated IGOs and NGOs – just as his membership does today. Correctly, he implied that each conflict would require the deployment of a combination of skills if Africa’s struggles were to be resolved through constructive solutions. To this end the industry might create and enforce order of a carefully qualified kind. In a more considered plan the nature of tasks would be identified in a more explicit form in both contract and UNSC resolutions. These would include a description of those roles a firm agrees to undertake once its capacities had been certified by a suitable UN bureaucracy;82 and those circumstances in which the contractor might withdraw (with or without penalties) or request more funding to pay for augmented methods or means. Issues might include limits to the number and mobility of interstate and intrastate refugees caused by the conflict or its escalation; a threshold of company casualties sustained over a certain time; limits to the number of adversaries; enemy deployment of certain weapons systems likely to prove decisive in skilled hands; the unexpected introduction of influential new allies on the enemy side; strikes at vulnerable third-parties associated with company staff; restrictive legislative or administrative acts by governments of states where the company is registered or has offices or a presence; bad faith acts by the principal (the UN); and changes to suitable UNSC mandates such that the company could not reasonably expect to complete tasks begun earlier in good faith. The more general point is that if there is to be an experiment in organised violence as a business enterprise, then it will require thoroughly detailed and businesslike arrangements. 5.3.2

Regulation

In the early days of the IPOA Brooks wrote of the constraints of ‘international and domestic laws’,83 while imparting insufficient clarity as to what this phrase might mean. If by ‘domestic laws’ he referred to the criminal law regime within an embattled client state, this carries a doubtful prospect of enforcement. In the event of contractor misbehaviour, one looks to the will and means required to launch a satisfactory investigation, carry out a prosecution, conclude a judgement consistent with international standards; and if necessary, incarcerate the convicted in civilised circumstances. In a chaotic state these processes and standards are unlikely to be adequate, reliable or institutionally disinterested. Nor is a weak host government likely to enforce its military or civilian laws vigorously, thereby antagonising temporary


contract soldiers upon whom that government may rely for its survival. It is not clear if Brooks also implied the domestic laws of a state where a PMSC is incorporated, a state in which an individual contractor holds nationality, a state where a PMSC has a presence – such as an administrative office or a training camp; or the domestic laws of other states bound by pertinent international customary and treaty law. At the international level there are two problems: a dearth of customary norms regarding modern military contractors; and treaties which tend to be of marginal relevance or which are poorly drafted, or both. For example, the 1989 Mercenaries Convention does not even identify the modern PMSC84 or its personnel.85 Another problem is uncertainty regarding applicable criminal justice regimes applying to PMSCs and their servants engaged in operations on a battlefield or a peacekeeping zone. Consider the recognisable anatomy of criminal law enforcement. This requires identification of authorities competent to supply jurisdiction and suitable laws known to be effective. These empower investigative agencies with the authority to carry out necessary conduct exercised via sovereign, multi-national or supranational authority. Skilled personnel are required to attend crime scenes, speak with various parties, observe and collect forensic evidence in conformity with prescribed procedures. They may identify, detain and interview a suspect in conditions which do not prejudice the collection and later use of evidence procured. Military investigators are trained to do this. It is difficult to see how civilians could carry out that function in a war zone, although this has been suggested.86 The trial of an accused should occur within a competent tribunal which applies internationally accepted standards of process, rules of evidence and adherence to substantive principles of criminal law generally recognised by civilised states. If conviction of a serious crime follows, that tribunal should be competent to despatch a prisoner to an humane prison or therapeutic environment in which s/he would serve a sentence. Upon completion of a term of imprisonment a convict is ideally repatriated through settled arrangements with that person’s state of nationality. Brooks appeared to grasp little of this but instead wrote vaguely of the requirement for ‘oversight’ and ‘observers’.87 Presumably, this oversight and observation would occur in sight of perhaps disgruntled and armed PMSC surveillance. Nor was it clear which institution would authorise this oversight; and pursuant to what authority it might accompany a PMSC; nor which coercive powers its agents might exercise, how these would be enforced and by whom. To some – and especially lawyers – a description of these principles may


seem self-evident and even tedious. But the point may not be left unaddressed. Coercive authority matters more in a conflict zone than elsewhere because of the uniquely violent possibilities presented by war. This is why the later IPOA code of conduct may have more to do with corporate public relations.88 These codes are common enough. For example, ‘Control Risks’ has an ethics charter.89 ‘ArmorGroup’ employees allegedly comply with two of them.90 And the ‘British Association of Private Security Companies’ has its own industry version.91 An instructive question is whether these codes would have made a difference in prevention of misconduct in the industry’s more notorious episodes. Would a code have transformed employees of CACI International, who are widely alleged to have been involved in torture at Abu Ghraib? And what of CACI management, who found ‘no evidence’ of abuse?92 Would a code have made a difference to conduct at ‘Custer Battles’ – whose now convicted directors93 are alleged to have defrauded the US government of $50 million over security contracts in Iraq?94 And what of DynCorp management, which flew alleged sexcriminal employees out of Bosnia to escape poor publicity resulting from the possibility of their arrest?95 Would a code of conduct have exerted an effect on staff at ‘Aviation Development Corporation’, whose employees’ alleged negligence in incorrectly identifying an aircraft in South America resulted in the killing of a missionary family, apparently confused with narcotics traffickers?96 And would a code have exercised any restraint on the Triple Canopy team leader alleged to have casually murdered Iraqi civilians for ‘sport’;97 or the Blackwater contractor alleged to have drunkenly murdered an Iraqi guard in the Green Zone?98 Nils Rosemann offers one of the more perspicacious accounts of company motives in the creation of a code of conduct. In the event of litigation a code of conduct is likely to be seen as …a manifestation of special diligence, which will influence judgement as to guilt and negligence. Indeed it is rare for violations of (human) rights to be corporate policy, being the result rather of employees failing to follow the rules. Standards for the behaviour of employees and management are in the interest of corporations to the extent that in the case of violations their liability will usually be of a limited nature if they can prove that they have complied with their duty of oversight. A CoC helps to define rules of behaviour as well as oversight responsibilities and procedures, and to put them into practice.


Following enactment of the Sarbanes-Oxley Act as a result of the Enron crisis in the USA, corporations are adopting Codes of Conduct with ever greater frequency to prove to the world at large that they are implementing their legal duties as a corporation. Compliance also makes them more attractive in the capital market, since there is also an increasing number of sustainability indices, attracting an ever growing level of investment.99 Whether individual or industry-wide, unless the concepts espoused in a code are given weight in enforceable form by states’ agencies (perhaps through future arrangements with IGOs) ethics charters are likely to be of limited value on their own. BAPSC Director-General Andrew Bearpark has suggested the UK government appoint an ombudsman to oversee his members.100 The idea may have merit depending upon the (as yet unappointed) ombudsman’s powers, budget and relationship with prosecutorial authorities in the UK and overseas. If accepted by the British government this role might develop as one part of a multi-level governance system. Such a layered or ‘laminated’ model could include self-regulation, states’ legislation and interstate agreements.101 An interstate debate on regulation more generally has begun to take form over the last three years or so.102 For example, the purpose of the Swiss government/ICRC ‘Intergovernmental Dialogue’, is to ‘develop options and regulatory models’.103 Some states are now co-operating in collaborative efforts to determine common legal obligations and desirable practices. The Montreux Agreement is a recent and constructive example.104 Brooks’ notion that PMSCs would take action against delinquent employees was especially doubtful.105 An obvious conflict of interest arises, something which becomes more pointed should delinquents be in management rather than uniformed ranks. The fact that Brooks thinks in this fashion hints at a broader problem. He promotes a corporatised system of administration which has no equivalent to those necessary disciplinary instruments armies properly carry. A chain of command, military laws, criminal investigators, military police, courtsmartial and penitentiaries are all absent. The inevitable consequence is that when challenged over allegations of misconduct involving violence in Iraq or Afghanistan, American corporate management reacts defensively according to principles routinely applied in US litigation. Management is not necessarily to be condemned for this, as the problem is not wholly of their making. But in the absence of a coercive apparatus analogous to those integral to military forces, management will serve predictable interests. In descending order these are: its own


and irregularly those of its shareholders,106 sometimes employees, less often contractors and rarely foreign citizens harmed by corporate negligence or more intentional employee villainy. A well-known DynCorp case is salutary. In 2001 there was an industrial tribunal hearing in the United Kingdom. The matter concerned the dismissal of a whistleblower named Kathryn Bolkovac. A past employee of DynCorp, she had identified involvement of the company’s Balkan management in racketeering in under-aged female prostitutes and related sexual violence. Company management reacted by dismissing then publicly vilifying Ms Bolkovac.107 In awarding a sizable sum to the complainant (Bolkovac) the tribunal was scathing of both DynCorp’s case and its conduct.108 In particular, the tribunal found that ‘It is hard to imagine a case in which a firm has acted in a more callous, spiteful and vindictive manner towards a former employee.’109 Ms Bolkovac’s experience is similar in substance to those of many other whistleblowers. The more significant lesson is that Brooks does not seem to acknowledge a fundamental idea: the necessarily rigorous governance of anyone – human or incorporate – employed in a violent and chaotic environment. The worst of all future worlds would be for the UN to supply legitimation without genuine enforcement. By contrast, the basis of effective governance of militaries is no secret: discipline and a culture of professionalism backed by a prompt threat to individual liberty. Military law provides this when enforced and seen to be enforced. It is an indispensable part of the maintenance of better standards in the more disciplined forces. Those considering the deployment of private military forces might reflect on the sense in creating something similar and consider how this might be done.110 5.3.3

Legitimacy

The IPOA raison d’etre appears to rest on two legs, both of which are plausible in favourable circumstances. The first is administrative efficiency. Brooks suggests that through the employment of contractors, states’ representatives and international civil servants are more likely to reach their objectives.111 The second leg is economic efficiency. More efficient means are asserted to be those supplied by private sources. And there is little doubt that some goods and services are delivered more efficiently by contractors than states. The premise can be justified once objectives are clearly defined; matched to proven capability in a genuinely competitive market which provides sufficient data on various risks; and once best market price is compared to the cost of state provision of comparable services where this is possible.


These ideas tend to be based on the neo-classical thesis on the inefficiency of states and the efficiency of markets. A cost/benefit argument suggests that fewer state resources will be expended where corporations deliver a good or service more cheaply.112 Sometimes this is so. But Brooks goes further. Echoing his earlier remarks on African conflicts, he has suggested that the solution to some of the world’s more enduring wars is ‘…a small, but willing chequebook’.113 IPOA representatives are of course paid to speak favourably of members’ capacities. Nonetheless, this remark appears exceedingly optimistic. It implies less than adequate awareness of the intractability of lengthy conflicts. And it suggests the desirability of a shift which privileges corporate goals under the banner of advancing the most effective means of achieving agreed outcomes.114 One is reminded of Paul Starr’s caution that privatisation can be an ideological as much as a logical concept.115 In this context the IPOA provides its own concepts of appropriate norms and practices.116 There is another leg supporting the contractor case but one which IPOA staff are less likely to discuss. This is a political justification arising from institutional re-alignment. Companies may have a case in those favourable circumstances described above. But questions will arise regarding the adequacy of future UN control of private authority where effective methods of supervision are untried or do not yet exist and will therefore require invention. The problem is that the importance of business arrangements could be elevated over collective forms of process which supply participatory legitimacy at the UN. A decline in participatory legitimacy is one aspect of a more general drift away from the doctrine of sovereign equality and towards a more de facto hierarchical model with the US at the apex of UN influence.117 Over several years American policies have demonstrated a symbiotic compatibility with the goals of US-based logistic support corporations such as KBR,118 train-and-equip firms like MPRI or the paramilitary Blackwater USA. MPRI is an IPOA member and Blackwater withdrew from the trade group in October 2007 in the face of adverse publicity resulting from the disastrous violence in Nosoor Square.119 Some of Brooks’ other claims do not withstand critical examination. He suggests that PMSCs ‘…behave like normal companies’.120 This is so only in a largely trite sense: they usually pay taxes,121 comply with home state governance most of the time and so on. The pertinent issue is that no other form of modern business (barring organised crime) wields violence directly in the service of profit. Nor does Brooks seem to understand that the client does not ‘…set the terms of the contract’,


as he suggests.122 In the face of a ruthless insurgency the client may be at an acute disadvantage in bargaining for top-end PMC services, perhaps in return for a share of valuable national assets. And – as in Sierra Leone – there may be very limited time left in which to make a fateful choice: to hire contractors or capitulate in the face of an unpopular and irredeemably criminalised insurgency. Private contractors are not ‘normal’ companies in another sense which Brooks does not discuss. Outside of UN contracts, other businesses do not pose questions of a competing capacity for violence with weak governments which might be their clients. Although the Italian condottieri sometimes removed their principals, one should be clear that 500 years later a direct threat to sovereign authority is unlikely. Anti-contractors sometimes raise the spectre of Colonel Bob Denard’s 1970s adventures in the Comoro Islands. His mercenaries removed one leader in 1973 before collaborating with the same politician three years later to remove his successor. Denard was briefly rewarded with posts of Defence Minister, Chief of Police and Commander-in-Chief of the Comoro Armed Forces. A few months later he resigned and left the country.123 A more plausible threat is likely to arise indirectly from legitimate intentions. For example, a US or UK combat services firm could be contracted to assist a South American government battle narco-insurgents as part of a generously funded US government program. It is conceivable that several company employees may choose to switch sides in return for vastly better pay. The villains might first visit the company control room and copy sensitive software or imagery, conversation transcripts or other surveillance, signals and intelligence related information. This they may pilfer. Some they may destroy. Their past company managers may have been honest and have acted in good faith. They may be guilty of no moral turpitude regarding their ex-employees or imminently disgruntled clients. Yet their former employees could make life unprofitable for their old paymasters and more hazardous for members of an increasingly nervous government.

5.4 5.4.1

An industry plan Reasons for scepticism

Potential tenderers vary in size, skills and capability.124 Some have demonstrated a capacity to pool their potential by forming consortia to lobby for UN projects. One example is the 2005 IPOA member proposal to assist the MONUC mission in the Democratic Republic of


Congo.125 Through force multiplication and projection through rapid reaction units, the consortium would in theory have improved the operation and its chances of success.126 Cost was assessed at around 20 per cent of the annual budget of the fully deployed mission.127 This may appear an efficient use of resources and an effective impetus towards mandate fulfilment. It is also a tangible basis on which to explore a specific industry claim. This is valuable as the proposal supplies concrete evidence of the extent of those capabilities the industry believed it was then capable of deploying. The plan was also vulnerable to a number of criticisms. Other remarks concern the arithmetic devised by those concerned. There may have been nothing wrong with agreement on a costing model commensurate with collective bargaining power balanced against the rising importance of more successful peacekeeping and the growing possibility of intervention. Matching this assessment to the UN’s perceived ability to pay may have made sound business sense.128 And ‘early movers’ in any immature market often show commendable entrepreneurship. Nevertheless, the consortium did not appear to contemplate a risk of substitution emerging from a genuinely competitive market. In other words, the market seemed to lack depth to the extent that the proposal resembled a collaborative exercise in the absence of competitor bids. And in an absence of competitor consortia, demand from the UN as a monopoly purchaser was likely to encourage rather than discourage uncompetitive trade practices. One risk was that the market price may have been a contrived measure of the value offered in the transaction. Apart from price it would also have been difficult to judge what other aspects may have been met in a sub-standard fashion because poor service is more likely where there is an absence of genuine competition. Nor were consortium members led by colourless executives. By engaging with the UN they would have become political actors seeking to exercise influence over choices to be made by a potential client. Whether subtly or more overtly, they would have tried to shape client criteria to which they could have provided solutions based on capabilities the consortium was fit to supply. These risks were exacerbated by the form the UN takes. One should bear in mind that the Charter was drafted in order to join often hostile states in an association, the primary purpose of which was the avoidance of war. Yet, it is very likely that various other agendas unrelated to the resolution of the DRC conflict would have influenced UNSC decisions. There may not have been a reassuringly consensual pressure


exercising coherent demands of the consortium both through and within the Security Council. Instead, competing states’ agendas would probably have fractured a desirable unity of purpose. In other words, an untested corporate product would have been offered to a client who was not proficient in formulating its requirements. Nor would the UN necessarily have safeguarded members’ interests by the creation of effective governance structures needed to deal with some of the more notorious pitfalls in contracting. For example, did the consortium intend defining criteria to evaluate its own performance and then purport to carry out evaluations on itself as CACI did in the wake of the Abu Ghraib scandal?129 Did the consortium have a role for the infamous ‘cost plus’ accounting which encouraged (then) Halliburton subsidiary KBR to spend more rather than less US taxpayers’ money in Iraq?130 Should MONUC assistance have proved successful, evolving circumstances would have required other attributes and skills. There would have been a need for negotiation, mediation and problem-solving techniques along with the building of co-operative strategies. A more general flair for diplomacy would have been valuable. Tasks at the conclusion of intrastate conflict include weapons collection, disposal and the demobilisation of troops, election-monitoring, post-conflict occupational training and reconstruction. Brooks emphasised how the consortium expected other agencies or NGOs to co-ordinate this work while the consortium focused on security.131 This may have been reasonable, but there remains a question over consortium understanding of peacekeeping doctrine and principles applied to the more successful operations completed by the UN. To imply that a private security employee could change uniforms overnight and join a UN force with no additional training seems doubtful. This is not a large point, but some training would seem to have been necessary. A larger point arises from an earlier observation: few belligerents engage in armed conflict believing their side will lose. This principle applies to the management of a private company as much as a government or insurgency within a state. The IPOA group collectively possessed enough knowledge about the instability they faced to propose a contract they presumably believed would succeed according to measurable criteria. But war is in one sense an argument over relative strengths.132 The consortium would almost certainly have grappled with unforseen events which would have revealed the incomplete or inaccurate information which is arguably one of the causes of war. The enemy might have been unexpectedly numerous; or have possessed more modern and more


sophisticated weaponry than anticipated; or displayed an invigorated will to endure. And through nothing more exotic than enhanced discipline and rigorous training, adversaries might have demonstrated an ability to overcome a technological advantage held by their corporate opponents. More ominously, the consortium might have discovered that armed gangs funded by extractive industries had hired their own PMSCs. With professional advice the enemy might have methodically negated those advantages declaimed so confidently by IPOA members. An example illustrates the point. Enemy guerrillas may have unexpectedly acquired both supply and expert tuition in the use of modern ground-to-air missiles. This is not improbable. Consider the situation if two helicopters from a squadron of twelve had been shot down one morning. What would have occurred the following day? Managers at the air mobility company would have wished to conserve their aircraft and crews. This intention could have prolonged the conflict should they have insisted on waiting until expensive counter-measures had been fitted to their UN-contracted helicopters. The cost of evolving military technologies is often uncertain and the technical requirements might have proved relatively costly.133 And with counter-measures or without, their insurer might have refused cover on the remaining aircraft. This insurance could have been a mandatory condition of their lease. Its loss and the abrupt search for a costly replacement could have proved an unwanted administrative difficulty. Company pilots, engineers and loadmasters pose another risk. After half a dozen of their colleagues had been efficiently incinerated by man-portable missiles, the remaining aircrew could have become sufficiently risk averse as to leave. They would have disobeyed no military order in doing so and faced no disciplinary process carrying a serious penalty. This is a classic example of a principal and agent problem where competing interests prove incompatible.134 For that matter, if several accurate mortar rounds had landed in the camp and maimed five or six support staff, the maintenance technicians, armourers, cooks and perimeter defence personnel may also have lost their collective nerve. Their leaving could also have caused operations to cease. Having lost two helicopters and six crew and facing critical desertions the consortium might have abandoned its principal, leaving the UN to weather the political and human consequences. These would have included a loss of prestige and legitimacy. And even if company management remained resolute, desertion by a handful of aircrew could have carried decisive consequences. This is not novel. Complete corporate failure in a PMSC has occurred before as a consequence of a few


lives lost. In Sierra Leone in the 1990s, Executive Outcomes’ predecessor was a firm called ‘Gurkha Security Guards’. GSG’s commander and a few employees were killed in an ambush. The firm then re-considered its position and left.135 That departure placed the government which had hired it in serious difficulty until EO arrived. Much like the condottieri of fourteenth century Italy, consortium members would doubtless have wanted to succeed, but did not wish to die doing so. There are echoes of this from the recent past. During the late 1990s the Ethiopians and Eritreans were at war. The Ethiopians leased a small but formidable air wing from the Russian firm Sukhoi, complete with pilots and maintenance crews. In response the Eritreans leased a similar package from an Ukrainian firm. Curiously, instead of engaging in a destructive battle for air supremacy, both firms proved noticeably risk-averse with their pilots and aircraft.136 A more speculative scenario features very different choices. The guerrillas might have proved unexpectedly inventive in adopting unorthodox means of warfare. For example, they would have possessed enough cash to pay an organised crime syndicate to assist them overseas. Consider abduction of family members of the board, management or major shareholders. Internet distribution of videoed torture of the abductees could have continued until relatives have successfully agitated for a withdrawal. American victims would have provided the most leverage. If successful, this course of action would have been cost-effective and relatively prompt in delivering results, representing an efficient use of capital by the guerrillas. There is a small irony here, in that outsourcing could have proved more decisive for UN antagonists than for the Security Council. If dangers to consortium personnel had escalated, it is also doubtful whether the operation would have remained profitable indefinitely. UN pockets are not bottomless. Nor is it clear that the consortium would have been able to replace lost staff and resources to the extent necessary to endure a protracted struggle – even if the task did remain profitable in the face of rising or unanticipated hazards. One of those hazards may have taken the form of relations with the volatile DRC military. In 2006 there were just under 17,000 MONUC personnel deployed in the DRC,137 sometimes alongside Congolese soldiers. During the early part of the year DRC troops mutinied, sacked a UN camp and attacked UN staff.138 If the same treatment had been meted out to contractors, how might they have responded? Attacks upon them by host forces would very likely have been grounds to terminate contractual obligations because of the impossibil-


ity of completing their part of the bargain. The consortium would probably have sought to end the relationship profitably, perhaps by seeking a remedy through litigation. One wonders if consortium withdrawal would in turn have stimulated counter-litigation from a freshly dissatisfied principal. Remedies the UN might have sought would probably have been limited for political rather than legal reasons. This is because litigation would have exposed the UN to squalid and unflattering publicity which might well have been considered too high a price to justify a quest for legal redress. Once a parting was resolved, the consortium’s component companies may or may not have found work. They may have been wound up, their reputations sullied. But their officers, directors, employees and shareholders would have lived to work and invest another day. By contrast, sudden withdrawal would have been most unfortunate for MONUC and its expanded mandate. A hasty pullout would have delivered another blow to a faltering UN reputation. And withdrawal would have been ruinous for many civilians struggling in the DRC. It may be that creating even very limited security in such a vast country was something simply beyond consortium resources. 5.4.2

US government interests

Most of the IPOA consortium appeared to be of American origin, which raises the matter of US government influence.139 The Americans pay 27 per cent of the UN peacekeeping budget. For that reason alone they are in a commanding position to influence other states as to the Administration’s views on what should be done in the DRC. For example, in December 2005 the US government caused the Security Council to delay action on further funding of the MONUC mission.140 This happened less than a week after the Security Council agreed to continue the MONUC mandate for only a month.141 It also occurred in the face of Mr Annan’s recommendation of an extension for another year and 2,500 more troops in addition to the 16,000 then in theatre. The ‘International Crisis Group’ issued a report thereafter predicting relapse into mass violence if urgent steps were not taken;142 noting that MONUC was not fulfilling its mandate to protect civilians143 and should forcibly disarm Hutu insurgents.144 Elsewhere in Africa, UN manpower shortages remained a source of continuing tension.145 These events elicit some reflection as to US government purposes. The Americans may have found it beneficial to assist private corporations enter the DRC for a mix of reasons. They might have sought to assess contractor capability for their own purposes in the future; to


have the consortium carry out various forms of intelligence collection unknown to the UN; or project US influence through the support of political, ideological or perhaps commercial programs launched in the region sometime earlier. If there had been support by the (then) Bush Administration, this could also have been a reaction to a Congressional vote to restrict an Administration’s inclination to send military personnel overseas. Private company employees may be despatched with no such oversight or restraint once their employer has secured a State Department license. As Ken Silverstein points out, this document is granted through a process that is not public.146 Furthermore, a US firm can embark on a program in another state without Congressional notification unless the contract value exceeds $50 million, which in Africa seems unlikely.147 And if the value proved to be higher, the agreement could have been broken down into smaller contracts for political convenience. A more troubling problem is that from ancient times to the present, there have been endless collaborative relationships where business, governments and others have sought mutually advantageous purposes through clandestine co-operation.148 More specifically, plausible deniability has been a consistently attractive attribute of mercenary labour since the state system evolved in the seventeenth century.149 These deniable operations are a durable business in which states tend to exercise few scruples. The US government is well-known for its employment of PMSCs for clandestine purposes150 and the recent Republican Administration seems to have tolerated few restraints upon the more lethal aspects of its war on terror. For example, that Administration was involved in less than successful covert hostilities within Somalia extending over several years.151 This effort appears to have involved at least two US military support firms in operational planning.152 In 2008 American journalist Nir Rosen also referred to the recent involvement of (then) Blackwater USA personnel in offensive operations in Somalia.153 In the Blackwater case, the firm had contracts with the US government which exceeded one billion US dollars’ value by the end of 2006. That figure does not appear to include the value of the firm’s classified contracts,154 some of which are known to exist with CIA.155 Blackwater’s Republican owner also appears to control an entity called ‘Greystone’, which recently promoted something euphemistically termed ‘proactive engagement teams’.156 Moreover, clandestine contractors have a history of carrying out violent CIA operations – for example, those conducted on the Afghan/Pakistan border.157 Providing covert advantage to PMSCs in


this manner seems almost prosaic alongside more infamous intelligence community associations, notably with organised crime.158 It would seem that PMSCs like the IPOA consortium are likely to be approached to participate in deniable operations on the basis of one or more of four reasons: where the neutrality of the US may be politically important to sustain while an Administration simultaneously wishes to execute covert operations involving unsavoury human rights violations; where the US may wish to sabotage a UN mandate to which it has agreed for politically expedient reasons;159 where American violence is to be inflicted on those who may inconveniently be seen as fighting ‘alien or racist domination’. (This is a piece of twentieth century diplomatic idiom often aimed against the US);160 or as noted above, where the US Executive branch employs contractors in order to overcome restraints on foreign military deployments which Congress might otherwise choose to limit. Paying contractors is one means of displacing political risks associated with involvement of the uniformed military. This makes it easier for the US to enter a conflict and suggests a usefully fungible form of power. By collaborating with (or perhaps manipulating) PMSCs, Washington is also spared the necessity of creating as many commercial enterprises to act as fronts or what are sometimes called ‘proprietaries’ in intelligence argot.161 To view the matter another way, where relations between a state and a private security provider are close, a MONUC support contract could fairly be inferred as what economist J.E. Fredland terms ‘a sovereign transaction of the exporting country’162 This is a reasonable assessment. In the past others have described the US train-and-equip company MPRI as a ‘…de facto arm of US foreign policy’,163 while MPRI executives unambiguously acknowledge that their company owes its existence to the service of US government goals.164 IPOA consortium members would almost certainly have been tethered by similar financial, cultural and nationality obligations fashioned within the Washington beltway rather than amongst contract lawyers on First Avenue in New York. One could extend this reasoning a little further. There is some evidence from French, British and US observers that MPRI did not merely train the Croatian army in the 1990s, but assisted in planning a devastating assault on Serb forces in the Krajina region in 1995.165 If true, this is a classic example of a corporation carrying out US government policy covertly and presumably in return for a tangible benefit. The MPRI example to one side, it is quite plausible to imagine an Administration influencing the management of an American-based UN contractor through a range of conventionally seductive inducements.


Consider guaranteed access to a certain high level government office for a certain length of time; assurance of a favourable government view of a proposed business deal in a conveniently unrelated field; agreement to supply preferred status for a future contract; or simply a generous but discreet cash payment for services rendered. But such inducements may become somewhat redundant. It seems that the industry’s sizeable classified contracts have for some years served US purposes involving both clandestine purposes generally and political violence in particular. This is hardly surprising. Over half today’s manpower within CIA’s national clandestine service is outsourced to private corporations.166 These thoughts do not stand apart from a particular strategic context. The US is undergoing a major shift in its African priorities and this has relevance for the DRC. Several years ago America began to adapt to counter growing Chinese investment167 and military168 influence. The US also seeks to widen surveillance and military action in Africa, including armed engagement with militant Islam. The US Combined Joint Task Force-Horn of Africa (CJTF-HOA) occupied the old French Camp Lemonier in Djibouti in part for the latter reason.169 Expanded military ties and joint exercises serve some of the same purposes.170 The US is evincing greater attentiveness to the continent’s resources and African oil in particular.171 These burgeoning US intentions contributed to pressure to devise the recently created American military command for the continent.172 Yet uniformed Americans are widely viewed with unease in much of Africa. In this context there exists more than adequate incentive for a US Administration to covertly wield influence through groups of PMSCs like the IPOA consortium – something incompatible with an American role in the Security Council when formulating MONUC mandates. To the less sophisticated observer company objectives seem to lie in profit alone. To the more perceptive, that goal will rarely be devoid of weighty political influences brought to bear by powerful states. More generally, the presently unconvincing distinction between companies as seekers of profit and states as seekers of power will continue to erode. This may seem a step backwards, to an era when merchant companies overtly carried characteristics of government.173 The firming of this modern alignment does revive something of a past where government and chartered companies joined their efforts to spectacular effect. Accordingly, whether within a UN mandate or through unilateral action, the spectre of neo-colonial ambition by the US becomes difficult to reject. It may or may not transpire that the Americans try to


sustain an empire in a newish, twenty-first century sense of the term.174 Regardless, UN policies in mineral-rich states like the DRC will remain a consistent target of American purposes, irrespective of the recent change of Administration and the introduction of diplomacy couched in more conciliatory terms.

5.5 5.5.1

Six prominent vulnerabilities The occasional indeterminacy of PMSC weaponry

One recent problem has been the indeterminacy of weaponry employed in certain armed PMSC operations. The matter is not one resolved through reliance on corporate adherence to states’ requirements consistent with international agreements and norms. Company personnel working for US-based PMSCs face lethal risks in places like Iraq and Afghanistan. They may not consider it in their interests to eschew what Steve Fainaru of the Washington Post Foreign Service described as ‘prohibited’ weapons. In his example, ‘Crescent Security’ personnel at Tallil air base in Iraq were found in possession of fragmentation grenades and anti-armour weapons.175 This matters because the US military had proscribed company possession of these weapons, yet the firm’s employees saw fit to procure and possess them with the intention to use them in the hazardous circumstances of their employment. This was the case in spite of the fact that the US government is at least as modern as most others and its armed forces are probably no less effective in administration and enforcement where this role falls to them. To company staff the possession of this hardware may have appeared prudent and sensible in their violent situation. They may even have been correct. But the larger point is not that company personnel may have breached various contractual and legal obligations. The significance is twofold: first, the opinion of corporate agents regarding suitable weapons differed from the view held by representatives of their principal (that is, agencies of the US government); and second, company employees were prepared to act upon this conviction. This is a classic variant of a principal/agent control dilemma, where the parties’ intentions differ notwithstanding the precision with which their contract is drawn. This would not occur (or would be a different type of problem) if company tasks had been carried out by the US military or State Department. The incident was foreseeable. It arose from the fact that those attributes which states value when deploying contract personnel in violent


circumstances are exactly the same traits which create various moral and other hazards. To reiterate some of the material in Chapter 3, contractors are sufficiently detached to deliver to states a degree of political convenience where a military uniform may prove unpopular in theatre; they supply greater expendability where the political consequences of injured or deceased military personnel may otherwise give pause to political decision makers; or where the costs to the state of those injured or ill are likely to be less than soldiers who may enjoy more generous benefits for a longer period; and PMSCs sometimes lower the costs of state association where contractors (rather than troops) conduct themselves in an unsavoury fashion. Modern governments continue to balance what they see as desirable features of armed agents against the risks and consequences of losing an uncertain degree of control – choice of weaponry being one example. 5.5.2

Adherence to international humanitarian norms

Another problem has been an absence of clarity in corporate and individual responsibilities arising from the international customary and treaty regime governing methods and means employed in the conduct of armed conflict.176 How companies might conduct their operations consistent with international humanitarian norms is a concern only belatedly sparking the legal development required.177 The responsibilities held by a corporate agent of a belligerent power (or more challengingly, an IGO)178 have yet to be canvassed convincingly by the industry. This is not surprising. Modern humanitarian ideals have mostly arisen in and around hostilities between non-corporate interstate and intrastate belligerents. Company/state, company/insurgent or company/company belligerence (either within or between states) sits uneasily here. Desirably clear-headed theorising has been hindered by legitimacy issues flowing from normative concepts of state authority179 and regular infusions of publicity supplied to durably negative perceptions of mercenarism.180 Even in their more important, non-derogable form, humanitarian concepts remain foreign to conventional expectations of corporate conduct and obligations to stakeholders.181 One problem is that what is sometimes called ‘the law of war’ demands a disciplined observance of principles holding greater importance than company interests. In the broader privatisation debate, this echoes John Donohue’s requirement for what he calls ‘fidelity to the public’s values’.182 Yet sluggish state responses suggest that governments have actively resisted extending the enforcement of desirable constraints in belligerent conduct to the


private sphere.183 For its part the industry has supplied an excess of unconvincing public relations. Fortunately, there are signs that this situation may be changing.184 Concern over PMSC adherence to international humanitarian principles is not a matter of theory alone. The use of compliant ammunition will be familiar obligation to those personnel amongst contractors who in earlier years served in states’ militaries. An issue has arisen over PMSC use of non-standard ammunition by contractors working for Blackwater.185 The recently devised ‘blended metal’ projectile is sometimes termed ‘armour piercing/limited penetration or “APLP” because it passes through steel sheeting but not flesh. On entering a human being the round apparently shatters explosively, creating what the American Army Times called ‘untreatable wounds’.186 This observation has apparently proved accurate in Iraq. The blended metal round is a concept quite different to the expanding round proscribed for state parties’ use in the 1899 Hague Declaration (IV, 3) Concerning Expanding Bullets.187 Nonetheless, this treaty codified one element of the customary rule prohibiting the use of weapons which cause unnecessary suffering.188 The US government has not ratified the Convention, although it has agreed to conform to the principle within the treaty regarding the infliction of ‘unnecessary suffering’.189 This adherence is consistent with US acceptance of a similar principle in the later 1977 Additional Protocol 1 to the Geneva Conventions expressed as ‘superfluous injury or unnecessary suffering’.190 These concepts are viewed by US authorities as reflecting customary international law.191 For this reason, one imagines that the US government is likely to resist distribution of blended metal rounds amongst its uniformed troops consistent with the spirit of the Convention and Additional Protocol. However, private firms which offer security, paramilitary services or clandestine violence are staffed by civilians. They are not a branch of the US government – although the American state and its agents both retain certain international humanitarian responsibilities. One person who has noted the APLP phenomenon is the chair of the UN ‘Working Group on the Use of Mercenaries’.192 Mr Jose L. Gomez del Prado recently suggested that ‘There are cases where PMSC employees have used…experimental ammunition prohibited by international law.’193 This assertion appears to be a reference to the Army Times article. Because Blackwater’s contractors are civilians, Mr del Prado’s view may be legally unsound. Less arguable is his forceful political posture and public hostility to Blackwater and similar firms. In this climate PMSCs would be wise to protect their already vulnerable


public profiles by adherence to international norms pertinent to small arms, light weapons and the ammunition they choose. 5.5.3

Dishonest employees and the negligent employer

Another matter concerns American federal government investigations of ‘Blackwater Worldwide’ in connection with several breaches of US laws. In September 2007 the firm was investigated for alleged infringements of American export regulations in connection with firearms, nightvision scopes and armour.194 At that time the US Attorney’s office in North Carolina in association with State Department and Pentagon auditors concluded that there was sufficient evidence to charge Blackwater employees.195 Two former employees had already pleaded guilty to firearms trafficking offences in early 2007.196 At the time of writing, the US State Department’s ‘Directorate of Defense Trade Controls’ had also moved to fine the North Carolina firm for shipping inadequately licensed weapons to police training centres in Jordan and Iraq.197 The Commerce Department was also conducting a review and federal officials had convened a grand jury to examine the company’s arms shipments and decide whether further criminal charges were warranted.198 Although aspects of Blackwater’s arms exports are not resolved, a more general question arises over the effectiveness of the US regulatory and enforcement apparatus in dealing with small arms and light weapons (SALW) exports and this American-based PMSC. This is of concern because the Americans have a statutory and administrative apparatus which at first blush appears to provide adequate license and export controls.199 Difficulties that have emerged at Blackwater lead one to wonder if the US government would be wiser to cease placing arms exports in the hands of these firms and instead rely on state bureaucracies and the US military for most of this work. States’ militaries experience their own problems with service personnel trafficking in small arms and light weapons from time to time. But unlike PMSCs, the US armed forces employ dedicated criminal investigations personnel who are competent to investigate these matters. And they are trained to carry out their tasks in the hostile circumstances of an armed conflict.200 In the alternative it may be prudent to consider altering the manner in which the government manages moral hazards associated with weapons exports responsibilities involving PMSCs. 5.5.4

Problems in political risk assessment

A different concern arises precisely because unlike a state’s armed forces, PMSCs may engage in inventive or unorthodox conduct in the


pursuit of profit while fulfilling a contract involving commerce in arms. The Arms to Africa Affair201 is a well-known example. ‘Sandline International’ was hired to assist the return to power of the then Sierra Leonean government-in-exile led by Ahmed Kabbah. The company was to act in co-operation with a Nigerian led force to remove an obstructive junta. To that end, Sandline purchased 30 tons of Bulgarian arms and apparently delivered them to Nigerian forces already deployed in Sierra Leone.202 The difficulty for the company was that the UN Security Council had placed an embargo on arms transfers to this small West African state.203 The United Kingdom was subject to this prohibition and the British government was embarrassed by the actions of British nationals who held management positions in Sandline. Company executives were perceived to have acted in conflict with obligations flowing from the UNSC resolution and the UK government response which implemented this decision. Company representatives defended their actions vigorously. They emphasised that they had acted in good faith by notifying the British government of their actions through an allegedly receptive High Commissioner. The matter was noteworthy for the willingness of an agent working for a government-in-exile to entertain considerable political risk in attempting to fulfil its contract. The unanticipated consequences illustrate an undesirable degree of unpredictability when contemplating an outcome arising from a volatile mix of arms dealing, entrepreneurial business, intrastate warfare and the competing goals of three governments: the Sierra Leonean government in exile led by Kabbah, the ECOWAS deployment led by the Nigerians and the British Labor government led by Mr. Blair. In the context of the Bulgarian small arms transfer, the germane issue is a mistaken perception as to the freedom which management of the PMSC imagined it enjoyed. To the Sandline chief executive an offer of assistance in putting down a junta may have combined lucrative business with ethical conduct as he saw it. Whether this was the case or not, the CEO apparently believed that keeping the British government informed through informal means would prove adequate political preparation when planning (albeit indirectly) to supply tonnes of small arms to a state in violent conflict. Colonel Spicer did not appear to expect the political controversy which ensued over the UNSC resolution, its application to British nationals through UK orders-in-council and the supply of small arms to a UN authorised force. (One is mindful that neither the company nor its officials were prosecuted in Britain for offences arising from their behaviour.) In hindsight a repeat of an


incident resembling the Arms to Africa affair would seem unlikely. But this is no reason to imagine that different PMSC management may in future resist politically contentious and diplomatically disruptive operations in pursuit of profit. Those operations may once again be judged by company executives to be sufficiently ethical. And they may involve actions taken in good faith – right up to the point at which another scandal emerges. 5.5.5

The inappropriately violent PMSC

Since the US invasion of Iraq in March 2003 there have been persistent reports of contractors opening fire on Iraqi civilians and attacking their property without reasonable cause.204 There may have been scores of unlawful killings and other serious crimes of violence.205 Anecdotal evidence suggests that the figure is at least what investigative journalist Robert Young Pelton in 2006 called ‘a not insignificant number’.206 In a comparison raised by industry critic Jeremy Scahill, from 2003 to early 2007 there had been 64 US military personnel charged with what he called ‘murder-related’ offences. Over this period there had been no similar charges brought (through any means) against armed US contractors207 although this has since changed.208 Amnesty International has compiled its own alarming list of allegations of contractor misconduct in both Afghanistan and Iraq.209 In 2005 the 3rd Infantry Division was responsible for security in and around Baghdad. Its then Deputy Commander was Brigadier Karl R. Horst and he put the matter this way: These guys run loose in this country and do stupid stuff. There’s no authority over them, so you can’t come down on them hard when they escalate force…They shoot people, and someone else has to deal with the aftermath. It happens all over the place.210 There is much anecdotal evidence of excessive and criminal contractor violence. For example, DynCorp whistleblowers who aired allegations of an apparently gratuitous murder by a work supervisor were promptly dismissed by their employer.211 In early 2009 a past Blackwater employee now living in Seattle is to face unlawful homicide charges in connection with what appears to have been the drunken shooting of an Iraqi Vice-Presidential bodyguard.212 And in the notorious Nisoor Square incident members of a Blackwater convoy shot and killed at least 17 civilians and wounded perhaps two dozen others. More than a year after the event and at the time of writing, the US


Justice Department has launched criminal prosecutions against five or perhaps six of those involved.213 This is significant because the American military concluded that all of the killings were unjustified and potentially criminal while an FBI investigation determined that 14 of the 17 homicides were groundless.214 While evidence of serious misconduct has mounted, equally alarming has been the broader institutional failure by US government agencies to identify and apply suitable criminal laws. Contractors allegedly responsible for unjustified small-arms related violence sometimes face investigations carried out by their employers. That administrative action occurs in a climate tainted by an obvious conflict of interest. This is unavoidable regardless of the diligence and skill which honest company management might attempt to exercise.215 Nor is simply repatriating those suspected of misconduct a solution, for several reasons: there is often no certainty that crucial forensic evidence will be collected in a timely fashion by competent technicians; that the location and interview of relevant witnesses will occur in ethical circumstances; and that evidence and witnesses will both follow a suspect to a competent court perhaps thousands of kilometres away. Nor is there reason to expect that jurisdiction, substantive law and due process will combine to achieve a just outcome in a foreign state where the political climate and other dynamics have been deliberately fashioned to discourage precisely this result. Congressman Dr David Price attempted to define suitable US criminal responsibilities when the Representative for North Carolina introduced the Transparency and Accountability in Security Contracting Act to the House in January 2007. Price acknowledged unprovoked violence inflicted by American private security on Iraqis,216 conduct which has occurred in what Amnesty International described as ‘rules-free zones’.217 This is no more or less than a reflection of the invading forces’ indifference to Iraqi welfare consistent with a more general absence of accountability for serious human rights abuses.218 And where agencies of the US government behave poorly, it is only to be expected that the same government would spend five years discouraging the exercise of a criminal justice system which effectively addresses the misconduct of its servants and agents. The UN may draw several lessons from these matters: the need for satisfactory standards in training and discipline, the communication of necessary intelligence and more general co-operation amongst friendly parties; a functioning criminal law regime; and effective command and control.


5.5.6

Political nepotism and market failure

Close relations between a powerful government and a major contractor carry mixed consequences. The UN is in a position to draw valuable lessons from the Bush Administration’s familiarity with Halliburton and its past subsidiary KBR.219 The latter faces persistent accusations of serious misconduct relating to its work in the Middle East. These include claims of improper contractual arrangements, ineffective control and poor accounting processes. Favourable treatment of Halliburton during Dick Cheney’s Vice-Presidential tenure has also provoked a widespread public perception of cronyism.220 This view has been prominent amongst members of the Democratic Party,221 some of whom have located extensive evidence in support of their claims of unsatisfactory behaviour. Much of this arose from a Halliburton monopoly created soon after the company was paid to create a contingency plan in 2002. This plan established criteria which became the basis of KBR’s own contract awarded a year later without competitive bidding.222 Some suggest that awarding KBR’s sole-source monopoly involved a manipulation of the institutions of US government223 and the office of the Vice-President in particular.224 This belief seems credible in view of the logistic support arrangement for much of the 2003 invasion of Iraq and subsequent assistance to the mostly American occupation.225 The monopoly took the form of a United States Army ‘Logistics Civil Augmentation Program’ or LOGCAP. This program manages contractors who support US Department of Defense missions around the world.226 LOGCAP contracts involve a ‘cost plus award fee’. In other words, there is a contract cost and an incentive fee based on performance. Consequently, LOGCAP has provided an incentive to spend more and thereby earn more. ‘Task orders’ to a contract holder may be worth tens or hundreds of millions of dollars and a contract may in turn be valued in billions. In the final LOGCAP-3 contract alone, KBR orders totalled $17.1 billion, including $15.4 billion in Iraq.227 The scheme has been dogged by controversy, including the removal of a career civilian who refused to authorise payment of over a billion dollars to KBR in the absence of ‘credible data or records’.228 It was only in July 2006 that the US army decided to end its exclusive, multibillion dollar monopoly on LOGCAP with KBR in favour of a new system. The revised arrangement spreads work amongst at least three contractors.229 Another scandal arose over a Halliburton contract to repair and operate Iraqi oil infrastructure, a deal valued at potentially $7 billion. This sum was concealed until persistent questioning by Democrats


caused the contracting government agency to disclose the figure involved.230 Documents justifying the decision by the US Army Corps of Engineers to avoid competitive tender on this project remain classified papers.231 Moreover, the Administration apparently removed financial investigators who would otherwise have scrutinised the spending of very large sums of money within Iraq.232 But remarkably lax standards were unexceptional for the times. By late 2005 the US ‘Special Inspector-General for Iraqi Reconstruction’ (SIGIR) had found widespread corruption, incompetence and poor management in the Iraq re-building program.233 Halliburton alone was identified by the US Comptroller-General as having wasted at least one billion dollars through inefficiency.234 The company engaged in other unsavoury practices, including reliance on more than 200 subcontractors which supplied very low wage labour exploited in deprived conditions.235 This practice appears to have been integral to the vast KBR logistics operation in Iraq.236 Only in April 2006 did the US military commander General Casey order changes to support operations to prevent breaches of US human trafficking laws.237 In broader terms, there appears little doubt that in its support for the company the Bush Administration maintained a measure of secrecy and absence of surveillance to the considerable advantage of Halliburton and KBR. Is a future UN Secretariat likely to withstand pressures associated with large logistics contractors which enjoy the backing of powerful states? At the very least it would seem sensible to avoid firms with a record of sharp practice in the market, unscrupulous relations with government and devious conduct towards employees. UN officials would probably find themselves obliged to consider US bids for major contracts in support of future PMSC deployments. On its face this is reasonable, as American companies have extensive experience in the field. Less enviable in this context is the US preponderance of diplomatic influence. It remains to be seen whether international civil servants and their masters might successfully resist influence exercised by powerful patrons on behalf of sub-standard tenderers.

5.6

Summary

Chapters 4 and 5 provide a corrective to earlier sanguinity. Applying constructive scepticism to industry assertions brings to light various deficiencies: grandiloquent claims as to capacity; ignorance of the importance of regulatory structures and a functional criminal justice regime in particular; an exaggerated faith in corporate governance and


a corresponding misunderstanding of the importance of self-interest in business (as in matters of state); problems arising from criminal violence and illicit dealing in arms; questionable adherence to principles of international humanitarian law; uncertain corporate judgement in matters of international political risk; unethical conduct of labour relations and sharp commercial practice. Yet the industry exhibits some impressive competencies and supporters have been understandably bullish over rapid and varied expansion in less than two decades. In America in particular the industry has met with startling commercial and political success, diversifying while building links to other industries and governments. In pondering future corporate operations one surveys an unsatisfying and incomplete mosaic. Frailties and less than exemplary conduct in Iraq in particular temper what might otherwise have been a more buoyant judgement. With little doubt the growth in various PMSCs will continue to develop around the world. A UN corporate military remains another matter. A corporate legion should be formed only if states are prepared to fund a fresh bureaucracy competent to exercise indispensable regulatory and administrative tasks. Most of these duties would be unfamiliar. Some may be unwanted. All would require a radical re-orientation towards unorthodox means that stand a chance of supplying better outcomes. Yet none of these hurdles is insurmountable. The following chapter contains one view of a governance structure that would enable better possibilities for both the industry and Charter goals. Notes 1

2

3

4

Contrast not-for-profit labour brokers, security training and cost-sharing experiments in the security industry. See J. Cockayne: Commercial Security in Humanitarian and Post-Conflict Settings: An Exploratory Study International Peace Academy (New York March 2006) p. 15. Dr. Peter Singer even wondered aloud if it may be possible to create not-for-profit ‘Soldiers Without Borders’, just like ‘Doctors Without Borders’ (MSF). Interview with author at the Brookings Institution, Wash DC 18 April 2006. D. Brooks quoted in S. Mbogo, ‘Mercenaries? No, PMCs’, West Africa Magazine (18–24 Sept. 2000) at viewed on 18 Feb. 2006. In the Gulf War of 1991 there was 1 contractor to 50 active duty US personnel. In the Gulf Invasion of 2003 it was 1 contractor to 10 active duty US personnel. See D. Avant, ‘Mercenaries’, Foreign Policy (July/August 2004) p. 21. Multinational Monitor, ‘The Privatized Military. The Unmonitored, Unregulated and Unchecked Growth of Private Military Firms/An Interview with Peter W. Singer’, viewed on 9 Feb. 2005 at at p. 7.

Other Industry Aspects 177 5 6

7

8

9 10 11 12

13 14

15

16

17 18 19 20 21

K.M. Jennings, Armed Services: Regulating the Private Military Industry FAFO Report 532, New Security Program 2006 p. 38. For the form this federal policy has taken see The President’s Management Agenda (Fiscal Year 2002) Executive Office of the President/Office of Management and Budget Circular A-76 p. 18 & note 1. D. Brooks, ‘Messiahs or Mercenaries? The Future of International Private Military Services’, International Peacekeeping Vol. 7 No. 4 (Winter 2002) p. 131. D. Avant, ‘Privatizing Military Training’, Foreign Policy in Focus Vol. 5 No. 17 (June 2000) p. 2 viewed on pdf on 11 June 2006 at . Mandel, Armies Without… pp. 129–30. See Avant, ‘Mercenaries…’ p. 22. R. Maze, ‘Private Guards Face US Fire, GAO Finds’, Defense News (22 Aug 2005) viewed on 23 Aug. 2005 at . S.L. Schooner, ‘Contractor Atrocities at Abu Ghraib: Compromised Accountability in a Streamlined, Outsourced Government’, Stanford Law and Policy Review Vol. 16 No. 2 at p. 549, cited in Isenberg, A Government in Search of Cover: PMCs in Iraq British-American Security Information Council (March 2006) p. 4. There are various other views. Some consider risk to be the pivotal criterion. Here mission requirements are best evaluated on the basis of a mix of private and public resources as hazards dictate. See A. Kochems, ‘When Should the Government Use Contractors to Support Military Operations?’ Backgrounder Heritage Foundation No. 1938 (19 May 2006). V. Haufler, ‘International Diplomacy and the Privatization of Conflict Prevention’, International Studies Perspectives Vol. 5 No. 2 (May 2004) p. 162. C. Holmqvist, Private Security Companies: The Case for Regulation SIPRI Policy Paper No. 9 (January 2005) pp. 47–8. See also OECD Guidelines for Multinational Enterprises viewed on 1 May 2006 at . Eg, I.L.O., Declaration on Fundamental Principles and Rights at Work International Labour Oganization 86th Session Geneva (June 1998) viewed on 14 May 2006 at . Site viewed on 14 May 2006 at . Respect for human rights includes avoidance of complicity in human rights abuses. See United Nations, The Global Compact viewed on 23 Nov. 2005 at . UN Doc. E/CN.4/Sub.2/2003/12/Rev.2 (2003) viewed on 14 May 2006 at . Paras. C4 & E10. Para 7. Kimberley Process viewed on 1 May 2006 at . See Voluntary Principles on Security and Human Rights viewed on 19 Jan. 2006 at . For an


22

23 24 25

26

27 28

29 30

31 32

33

34 35

early commentary see G. Carbonnier, ‘Corporate Responsibility and Humanitarian Action’, International Review of the Red Cross Vol. 83 No. 844 at pp. 956–8. Also Holmqvist, Private Security Companies. The Case… p. 48. B. Moller, ‘Private Military Companies and Peace Operations in Africa’, Seminar Paper presented at Private Military Companies in Africa, To Ban or Regulate? Dept of Political Science, University of Pretoria (8 Feb. 2002) p. 10; cited in J. Spear, Market Forces: The Political Economy of Private Military Companies FAFO New Security Programme Report 531 (2006) footnote 181 at p. 50. D. Henderson, Misguided Virtue: False Notions of Corporate Social Responsibility Institute of Economic Affairs (London 2001) See ch. 5 & esp. ch 6. UNGA Res. 34/169 (17 Dec. 1979) Viewed on 14 May 2006 at . As adopted by the Eighth UN Congress on the Prevention of Crime and the Treatment of Offenders Havana, Cuba (Aug.–Sept. 1990). Viewed on 14 May 2006 at . On the manipulation of the UNHCR in Bosnia see P. Moon, ‘Peacekeeping Versus Humanitarianism’ New Zealand International Review Vol. 22 No. 5 (Sept.–Oct. 1997) p. 15. M. Malan, ‘Peacekeeping in the New Millennium: Towards “Fourth Generation” Peace Operations?’ African Security Review Vol. 7 No. 3 (1998) p. 16. Note that the impartiality of humanitarian efforts have also been threatened by Coalition Provisional Authority attempts to force reporting to American occupation forces in Iraq. See Wulf, Internationalizing and Privatizing… at p. 136. Past Secretary of State Powell memorably described humanitarian organisations in Afghanistan as part of the NATO ‘combat team.’ Powell thereby identified scores of vulnerable aid workers with the purposes of a hated occupier. See Wulf, Internationalzing and… p. 138. M. LeRiche, ‘Unintended Alliance: The Co-Option of Humanitarian Aid in Conflicts’, Parameters (Spring 2004) p. 118. P. Adams, interview with Prof. Eric Reeves entitled ‘Darfur: The Forgotten Genocide’, Radio National Australian Broadcasting Corporation (16 Feb. 2006) heard on 19 Feb. 2006 at . See Supra ch. 2.4. P.R. Newswire, ‘Families of US Army Personnel Killed in Plane Crash File Suit Against Civilian Contractor That Operated Flight’ (13 June 2005) viewed on 13 June 2005 at ; G. White, ‘Blackwater Broke Rules, Report Says’, Washington Post (5 Oct. 2005) viewed on 6 Oct. 2005 at ; M. Vorsino, ‘Schofield Families Sue Over Fatal Afghan Crash’, Honolulu Star-Bulletin (13 June 2005) viewed on 14 June 2005 at . E.P. Dalesio, ‘Federal Judge Sends Lawsuit over Blackwater Deaths to NC Court’, Associated Press (15 Aug. 2005) viewed on 16 August 2005 on . T. Catan, ‘Private Armies March into a Legal Vacuum’, Financial Times/FT. com (10 Feb. 2005) viewed on 10 Feb. 2005 at . A. Drawhorn, ‘Deuley Family Suing Security Contractor’, (4 Oct. 2005) viewed on 5 Oct. 2005 at on .


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F. Stockman, ‘For War Zone Workers, A New Fight’, Boston Globe (20 Jan. 2007) viewed on 20 Jan. 2007 at . R. Egan, ‘US Welcome Disappoints Iraqi Interpreter Who Lost Both Legs’, Salt Lake Tribune (2 Jan. 2009) viewed on [email protected] on 3 Jan. 2009. See Egan, ‘US Welcome…’. T.C. Miller, ‘Army, Insurer in Iraq at Odds’, Los Angeles Times (13 June 2005) viewed on 13 June 2005 at ; USA Today, ‘Defense Seeks Insurance Plan Changes. Workers’ Compensation Scrutinized’ (14 June 2005) p. 4B viewed on 15 June 2005 at . F. Stockman, ‘US Workers in Mideast Find Hurdles in Local Courts. American Firms Policies Block Employees’ Suits’, The Boston Globe (7 Aug. 2008) viewed on 12 Jan. 2009 at And significantly, for the US government. See Singer, Corporate Warriors/ International Security p. 212. Extensive training of US forces is conducted by MPRI. See web page entitled ‘Training, Education and Leadership Development Programs’, at viewed on 29 Jan. 2006. A. Leander, ‘The Power to Construct International Security: On the Significance of Private Military Companies’, Millennium Vol. 33 No. 3 pp. 803–26. Leander, ‘The Power to…’ p. 825. For some comments on this phenomenon see R. Wedgwood, ‘Legal Personality and the Role of Non-Governmental Organizations and NonState Political Entities in the United Nations System’, in R. Hoffman (ed.) Non State Actors as New Subjects of International Law Duncker & Humblot (Berlin 1999) at pp. 27–8. Private security may even see an advantage in the absence of clear hierarchy amongst proliferating non-state actors now crossing state frontiers. The phenomenon drew comment as far back as at least 30 years ago. See H. Bull, The Anarchical Society Macmillan 1st ed (1977) p. 39. M.A. Cohen & M.F. Kupcu, ‘Privatizing Foreign Policy’, World Policy Journal (Fall 2005) pp. 36 & 43. United Nations Millennium Declaration Office of the United Nations High Commissioner for Human Rights viewed on 9 Feb 2006 at . In Larger Freedom. Towards Security, Development and Human Rights For All Report of the Secretary-General of the United Nations for Decision by Heads of State and Government in September 2005. UN Dept of Public Information 2005 viewed on 9 Feb. 2006 at . The Responsibility to Protect Report of the International Commission on Intervention and State Sovereignty (Ottawa Dec. 2001). Center for Public Integrity, ‘Colombia: Outsourcing War’, Report viewed on 9 Nov 2005 at . Defence Systems Ltd (UK) was bought by the American firm Armor Holdings in the 1990s. Associated Press, ‘Lockheed to Buy Pacific Architects’, Los Angeles Times (18 Aug. 2006) viewed on 19 Aug. 2006 at .


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Reuters, ‘BAE in Final Talks to Buy Armor Holdings: Paper’ (6 May 2007) viewed on 8 May 2007 at . Titan, L-3 Investor Information, ‘L-3 Communications Awarded $22 million National Security Agency Technical Assistance Contract’, viewed on 15 Feb. 2006 at . R. Gerin, ‘DIA Drafts CACI for Defense Intel Services’, Government Computer News (GCN) (31 May 2006) viewed on 1 June 2006 at . This involves new ‘virtual fence’ technology. See Defense Industry Daily at (21 Sept. 2006) viewed on 22 Sept. 2006 at . Bloomberg News, ‘Translating for Army is Big Business’, (4 Oct 2006) viewed on 5 Oct. 2006 at . R. Merle, ‘Security Firm DynCorp Plans $450 Million IPO’, Washington Post (29 Sept. 2005) viewed on 1 Oct. 2006 at . D. Jackson & J. Grotto, Inside the World of the War Profiteers’, Chicago Tribune (25 March 2009) viewed on 26 March 2009. For a description of LOGCAP, see Infra 5.5.6. prweb, ‘Blackwater Unveils New Maritime Subsidiary’, (30 Aug. 2006) viewed on 30 Aug. 2006 at . R. Merle, ‘Security Firms Look Beyond the War’, Washington Post (3 Feb. 2006) viewed on 4 Feb. 2006 at . M. Hemingway, ‘Warriors for Hire: Blackwater USA and the Rise of Private Military Companies’, The Weekly Standard (18 Dec 2006) Vol. 012 Iss. 14 viewed on 9 Dec. 2006 at . Merle, ‘Security Firms Look…’ M. Minton, ‘Battlescape Shoots for Profit’, Northwest Arkansas News Service (19 Feb. 2006) viewed on 20 Feb. 2006 at . N. Wakeman, ‘General Dynamics to build Training “Village”’ Washington Post (13 Nov. 2006) viewed on 14 Nov. 2006 at . S. Armstrong, ‘The Enforcer’, The Guardian (20 May 2006) p. 33. The boom in Iraq has slowed predictably. See FT.com, ‘Armor Warns of Profits ‘Substantially’ Below Expectations’ (11 Nov. 2005) at viewed on 11 Nov. 2005. The big construction contractors were also beginning to leave in 2006. See S. Behn, ‘Contractors Leaving Iraq’, Washington Times (23 Jan. 2006) viewed on 23 Jan. 2006 at . S. Harris, ‘Contractor’s Rise Shows Blurred Government, Industry Lines’, govexec.com/National Journal (7 July 2006) viewed on 8 July 2006 at . See viewed on 18 Feb. 2007. Membership at that date included 30 companies. The more recent British sibling is the ‘British


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Association of Private Security Companies’ at ; See also ‘New British Association of Private Security Companies’, SecurityPark.Net viewed on 18 Feb. 2006 at ; viewed on 14 Feb. 2006. P. Fabricus, ‘Private Security Firms Can End Africa’s Wars Cheaply’, Saturday Star (Johannesburg 23 Sept. 2000) viewed on 5 April 2002 at . Fabricus, ‘Private Security…’ S. Mallaby, ‘Paid to Make Peace, Mercenaries Are No Altruists, But They Can Do Good’, The Washington Post (4 June 2001) viewed 5 April 2002 at . Also S. Mallaby, ‘New Role for Mercenaries’, Los Angeles Times (3 August 2001) viewed on 5 April 2002 at . A helpful summary of the issues may be found in D. Avant, The Market for Force Cambridge University Press (Cambridge 2005) pp. 192–203. S. Mbogo, ‘Privatising Peacekeeping’, West Africa (18 Sept 2000) viewed on 5 April 2002 on . S. Mbogo, ‘Mercenaries? No, PMCs’, West Africa (18 Sept 2000) viewed on 5 April 2002 at . Mbogo, ‘Mercenaries? No…’ J.L. Taulbee & D.A. Head, ‘Mercenary Commando Operations: Theory Versus Practice’, The Journal of Strategic Studies Vol. 16 No. 1 (March 1993) p. 113. They also identify a relatively poor success rate in coup attempts at p. 114. President Mobutu’s more recent ‘White Legion’ of largely European soldiers proved as short-lived as they were ineffective in the field. See J.L. Taulbee, ‘Mercenaries, Private Armies and Security Companies in Contemporary Policy’, International Politics Vol. 37 (December 2000) p. 443. Taulbee, ‘Mercenaries, Private Armies and…’ p. 447. K.A. O’Brien, ‘PMCs, Myths and Mercenaries. The Debate on Private Military Companies’, RUSI Journal Vol. 145 No. 1 (2000) p. 63. One notes the rise in prosecutions of this nature as international criminal law matures and extends its reach. For a general commentary see K. Kittichaisaree, International Criminal Law OUP (Oxford 2001). See M. Van Creveld, The Transformation of War The Free Press (New York 1991). See pp. 18–25; 25–32; 49–57; 57–62. Also M. Van Creveld, The Rise and Decline of the State C.U.P. (1999) ch. 6 at ‘The Threat to Internal Order’, pp. 394–408. One feature of future wars will be uncertainty over the sophistication of weaponry available to a maverick but professional contractor well paid from affluent sources. For some inkling of this, see A. & H. Toffler, War and Anti-War Little, Brown & Co (1994) at chs. 11& 19. Toffler, War and Anti War… pp. 188–9. See Infra ch. 6 and Appendix I. D. Brooks, ‘Write a Cheque, End a War’, Conflict Trends (June 2000) p. 34. D. Shearer, ‘Outsourcing War’, Foreign Policy (Fall 1998) p. 1. The UN scenario to one side, PMC personnel are likely to be included in the national forces of the state concerned, placing them outside of the ambit


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of proscriptive treaties. See Article 47, 1977 Protocol 1 Additional to the Geneva Conventions of 1949 1125 UNTS (1979) 3–608; United Nations International Convention Against the Recruitment, Use, Financing and Training of Mercenaries (1989) 11 Dec. 1989 G.A. Res. 44/34, 44 UN GAOR Supp. no. 49 at 306. UN doc. A/44/49 (1989); and the Convention for the Elimination of Mercenarism in Africa (1977) OAU Doc. CM/817 (39) Annex II Rev. 3 (1977). It was Sandline policy to have staff attached as defence personnel of the client for legal reasons. See T. Spicer, An Unorthodox Soldier Mainstream Pub (Edinburgh 1999) p. 24. The IPOA in 2007 supported the application of the US ‘Military Extraterritorial Jurisdiction Act to Iraq, but the idea that American FBI agents could be despatched to Iraq, travel where necessary, locate witnesses and so on seems dubious. See J. Scahill, ‘Who Will Stop the US Shadow Army in Iraq?’ in ‘A Democratic Sell-Out on Mr Bush’s Mercenaries’, Global Policy Forum (29 April 2007) viewed on 7 May 2007 at . Brooks, Write a Cheque…’ p. 35. IPOA Code of Conduct (31 March 2005) viewed on 20 Feb. 2006 at . Control Risks website viewed on 7 May 2006 at . ArmorGroup website viewed on 7 May 2006 at . viewed on 1 Nov. 2006. For a summary of several examples see D. Pugliese, ‘Fighting Abuses on the Battlefield: Incidents Shed Light on the Secret World of Private Interrogators’, The Ottawa Citizen (15 Nov. 2005) Final Ed. p. A12 viewed on 16 Nov. 2005 at . E. Eckholm, ‘US Contractor Found Guilty of $3 Million Fraud in Iraq’, NYTimes.com (10 March 2006) viewed on 10 March 2006 at . Pugliese, ‘Fighting Abuses…’ Pugliese, ‘Fighting Abuses…’ Pugliese, ‘Fighting Abuses…’ ADC was apparently a CIA company. T. Jackman, ‘US Contractor Fired on Iraqi Vehicles for Sport, Suit Alleges’, Washington Post (17 Nov. 2006) at viewed on 17 Nov. 2006 at . Y.J. Dreazen, ‘New Scrutiny for Iraq Contractors’, Wall Street Journal (14 May 2007) viewed on 19 May 2007 at . N. Rosemann, Code of Conduct: Tool for Self-Regulation for Private Military and Security Companies DCAF Occasional Paper No. 15 (Geneva 2008) pp. 24–5.

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A. Bearpark, Address of 19 Oct. 2006 at Private Military Companies Operating in Situations of Armed Conflict, being the 7th Bruges Colloquium (19–20 Oct. 2006). Permission to quote supplied by Bearpark in e-mail to author on 23 Oct. 2006. See more detail in A. Bearpark & S. Schulz, ‘The Regulation of the Private Security Industry and the Future of the Market’, viewed on 24 Nov. 2006 at . For an earlier example see Security and Defence Agenda, The Private Security Phenomenon: Policy Implications and Issues SDA Monthly Roundtable (Brussels 7 Dec. 2006) at p. 4. Swiss Federal Dept of Foreign Affairs (Directorate of International Law) & ICRC, ‘International Initiative to Promote Respect for International Humanitarian Law and Human Rights Law with Regard to Private Military and Security Companies Operating in Conflict Situations’ viewed on 1 Nov. 2006 at . Montreux Document on Pertinent International Legal Obligations and Good Practices for States Related to Operations of Private Military and Security Companies During Armed Conflict Swiss Initiative in Cooperation with the International Committee of the Red Cross and Private Military and Security Companies (17 Sept. 2008) Brooks, ‘Write a Cheque…’ p. 35. The matter can be complicated because of the variable degree of equity management may hold in the company. At either pole, management and shareholders may be one and the same or wholly unrelated. N. Cohen, ‘The Mercenaries Who Fight for Britain’, New Statesman Vol. 132 Iss. 4622 viewed on 9 Feb 2005 at p. 3. Generally, see S.E. Mendelson, Barracks and Brothels Center for Strategic and International Studies Wash. DC (Feb 2005). And in particular, scant evidence. See K.P. O’Meara, ‘DynCorp Still Taking the Low Moral Ground’, Insight Magazine (Sept. 2 2002) p. 2 viewed on 14 Aug 2002 at . cited in Cohen, ‘The Mercenaries Who Fight…’ p. 3; also D. McGrory, ‘Woman Sacked for Revealing UN Links with Sex Trade’, TimesOnline (7 Aug. 2002) viewed on 24 May 2005 at . One such model is found in Infra ch. 6 and Appendix 1. D. Brooks, Protecting People: The PMC Potential Comments and Suggestions for the UK Green Paper on Regulating Private Military Services (25 July 2002) viewed on 17 Oct. 2006 at <www.hoosier84.com/0725brookspmcregs.pdf> pp. 1–6. H.B. Feigenbaum & J.R. Henig, ‘Privatization and Political Theory’, Journal of International Affairs Vol. 50 No. 2 (Winter 1997) p. 341. Brooks, ‘Write a Cheque…’ p. 33. On administrative, economic and political perspectives of privatisation see H. Feigenbaum, J. Henig & C. Hamnett, Shrinking the State C.U.P (UK 1999) pp. 36–42. P. Starr, ‘The Case for Skepticism’, being ch. 3 in W.T. Gormley Jr., Privatization and its Alternatives Uni of Wisconsin Press (1991) at p. 26.


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On formalised concepts of norms and practices see A.C. Cutler, V. Haufler & T. Porter, ‘Private Authority and International Affairs’, being ch. 1 in A.C. Cutler, V. Haufler & T. Porter (eds), Private Authority and International Affairs State Uni. of New York (NY 1999) at pp. 12–13. Charter Art. 2(1) establishes the sovereign equality of UN members. On Halliburton subsidiary KBR see Infra ch 5.5.6. A. Cole, ‘Blackwater Quits Security Association’, Wall Street Journal (11 Oct. 2007) viewed on 26 Feb. 2009 at . Brooks, ‘Write a Cheque…’ p. 34. This is not always the case. See Supra 5.2 this chapter. Brooks, ‘Write a Cheque…’ p. 34. For a summary of this remarkable episode, see G. Dyer, ‘Comoro Islands’, being pp. 124–5 in J. Keegan, World Armies 2nd ed. Macmillan (London 1983). The Center for Public Integrity holds a database of over 90 PMC/PSC firms originating in various parts of the world. See viewed on 2 Oct. 2005. IPOA, Supporting the MONUC Mandate With Private Services in the Democratic Republic of Congo Operational Concept Paper (2 Jan. 2003) viewed on 2 Oct. 2005 at hereafter Supporting the MONUC/Concept IPOA, Supporting the MONUC/Concept pp. 3 & 5. The maximum cost was $200 million in total for each year in which the consortium would participate. IPOA, Supporting the MONUC/Concept p. 6. Dr. Avant has suggested that privatisation or outsourcing which delivers services more efficiently than government requires a competitive market and contractor flexibility in fulfilment of obligations. She notes that conditions imposed by the US government have on occasion limited that flexibility and raised the cost of a task beyond its earlier, in-govt. value. See D. Avant, ‘Mercenaries’, Foreign Policy (July/Aug. 2004) p. 22. See Singer, ‘Outsourcing War…’ p. 5. Criticism of this practice is not new. Trenchant views were published over 20 years ago in J.D. Hanrahan, Government By Contract W.W. Norton & Co. (New York 1983) p. 31. On cost-plus arrangements see ch. 5 pp. 32–3. IPOA, Supporting the MONUC Mandate With Private Services in the Democratic Republic of Congo IPOA Presentation (1 May 2003) at slide 19 viewed on 20 Feb. 2006 at , hereafter Supporting the MONUC/Presentation. This is one of the arguments to be found in G. Blainey, The Causes of War 3rd ed. Macmillan (Basingstoke 1988). K. Hartley, ‘The Economics of Military Outsourcing’, Public Procurement Law Review Vol. 11 No. 5 (2002) p. 290. For an economic examination of this and related issues see J. Brauer, ‘An Economic Perspective on Mercenaries, Military Companies, and the Privatisation of Force’, Cambridge Review of International Affairs Vol. XIII No. 1 (Autumn–Winter 1999) p. 132. A. Vines, ‘Gurkhas and the Private Security Business in Africa’, being ch. 7 in J. Cilliers & P. Mason (eds), Peace, Profit or Plunder? Institute for Security Studies Pretoria (South Africa 1999) at pp. 129–32.

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H. Wulf, Internationalizing and Privatizing War and Peace Palgrave Macmillan (Hampshire 2005) p. xiv. MONUC site viewed on 14 Nov. 2006 at . D. Lewis, ‘Congo Army Soldiers Mutiny, Ransack UN Camp’, Reuters Foundation (2 March 2006) viewed on 4 March 2006 at . IPOA, Supporting the MONUC Mandate/Concept p. 3. P. Heinlein, ‘US Questions Expansion of UN DRC Mission’, Voice of America News (1 Oct. 2005) viewed on 17 Oct 2006 at . IRIN, ‘DRC: Council Extends MONUC’s Mandate by One Month’ (3 Oct. 2005) viewed on 3 Oct. 2005 at . International Crisis Group, ‘A Congo Action Plan’, (Briefing) (19 Oct. 2005) viewed on 21 Oct. 2005 at . International Crisis Group, ‘A Congo…’ International Crisis Group, ‘A Congo…’ IRIN, ‘Cote d’Ivoire: West African Leaders Want More UN Peacekeepers’, (3 Oct. 2005) viewed on 5 Oct. 2005 at . K. Silverstein, ‘Privatizing War’, The Nation (28 July 1997) p. 8 viewed on 29 Sept. 2005 at . K. Silverstein, Private Warriors Verso Books (London 2000) p. 167. See also Wulf, Internationalizing and Privatizing… p. 191. For example, the supply of financial advantage in return for clandestine benefits to British governments prior to the 20th century is ably conveyed in C. Andrew, Secret Service Guild Pub/William Heinemann (1985) at ch. 1: ‘Victorian Prologue: MID, NID and the Special Branch’. R. Mandel, Armies Without States. The Privatization of Security Lynne Rienner (Boulder Colorado 2002) p. 31. Eg, O’Brien, ‘PMCs, Myths and…’ p. 63. The chief administrative officer of ArmorGroup plc. considered British corporate culture less receptive to this conduct than its US counterpart; and that a larger company will have less incentive than a smaller, perhaps less profitable one. Mr Christopher Beese interviewed by author in London 26 Sept. 2006. P Salopek, ‘Nobody is Watching’, Chicagotribune.com (24 Nov 2008) viewed on 29 Nov. 2008 at . A. Barnett & P. Smith, ‘US Accused of Covert Operations in Somalia’, The Observer (UK) (10 Sept. 2006) viewed on 11 Sept. 2006 at . Mr Rosen spoke on 3 April 2008 at the Center on Law and Security/NYU School of Law seminar entitled ‘Privatizing Defense: Blackwater, Contractors and American Security.’ He also referred to involvement of personnel from other firms and ‘MVM’ in particular. Trading Markets.Com, Blackwater’s Aggressive, Entrepreneurial Culture Keeps its Business Growing’ (17 May 2008) viewed on 10 Nov. 2008 at . Ibid. R. Young Pelton, Licensed to Kill Crown Pub. (New York 2006) pp. 298–300.


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Pelton, ‘Edge of the Empire’, being ch. 2 in Pelton, Licensed to…. Recall Ch. 4.7 Supra and attempts at assassinating heads of state and enlarging narcotics empires. Both were energetically pursued by the US intelligence community in chapters of its more ignoble past. The idea is more generally entertained in Mandel, Armies Without… p. 79. There is a long political history to this concept. An early example is the Declaration on the Granting of Independence to Colonial Countries and Peoples UN GA. Res. 1514 (XV) (14 Dec 1960). ‘Civil Air Transport’, ‘Air Asia’, ‘Intermountain’ and ‘Southern Air Transport’ were a few examples from the Cold War. The biggest air services company was ‘Air America.’ See B. Toohey & W. Pinwill, Oyster: The Story of the Australian Secret Intelligence Service Mandarin/Octopus Pub (1990) at p. 48. For a popular account see C. Robbins, Air America Corgi Books (1988 ed.) pp. 12–17. J.E. Fredland, ‘Outsourcing Military Force: A Transactions Cost Perspective on the Role of Military Companies’, Defence and Peace Economics Vol. 15 No. 3 (June 2004) p. 213. J. Kelly, ‘Safety at a Price: Military Expertise for Sale or Rent’, post-gazette. com (4 Feb. 2002) p. 4 viewed on 18 Feb. 2006 at . Lt.-Gen. Ed Soyster (ret’d.) Vice-President, Int’l Operations MPRI quoted in ‘Conflict Inc.: Selling the Art of War’, Center For Defense Information p. 1 viewed on 18 Feb. 2006 at . Remarkably, Mandel argues that MPRI was set up in part to provide employment for former American SF personnel who would otherwise ‘… join the retinues of narcotraficantes.’ See Mandel, Armies Without States… p. 66. Silverstein ‘Privatizing War…’ p. 4. Also Avant, The Market for… pp. 103–5 & her note 52 at p. 153; Silverstein, Private Warriors… pp. 171–4. R.H. Hillhouse, ‘Outsourcing Intelligence’, The Nation (24 July 2007) viewed on 1 March 2009 at . And oil deals in particular. See V. Walt, ‘China’s Appetite for African Oil Grows’, Fortune/CNNMoney.com (15 Feb 2006) viewed on 6 March 2006 at . For example AFP/defensenews.com, ‘Sierra Leone and China in Military Assistance Deal’ (18 Jan. 2006) viewed on 19 Jan. 2006 at . See J. Kucera, ‘Djibouti: US Foothold in Africa’, Jane’s Defence Weekly (20 Oct. 2005) viewed on 23 Oct. 2005 at . From Camp Lemonier these forces search the Horn of Africa for Islamic militants. See I. Bruce, ‘British and US Special Forces Target Al Q’aeda Operations’, The Herald (29 Dec. 2005) viewed on 29 Dec. 2005 at . R. Burns, ‘Rumsfeld Seeks Military Ties With N Africa’, washingtonpost.com (11 Feb. 2006) viewed at on 11 Feb. 2006; G. da Costa, ‘US Military Plans Joint Exercises in West Africa’, voanews.com (13 May 2006) viewed on 14 May 2006 at .


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Supreme Allied Commander Europe (SACUER) General Jones recently acknowledged that in one decade’s time 25 per cent of US oil will be of African origin. See defence-aerospace.com, ‘Senate Learns of US Military Partnerships in Africa’; ‘EUCOM’s General Jones Details Security Program’, at (7 Oct. 2005) viewed on 10 Oct. 2005 at . Bolstering US oil interests was one reason advanced by MPRI for a successful review of its rejected application to work in Equatorial Guinea. See Avant, The Market For… pp. 154–5. US operations in Africa were previously split between the US European Command based in Stuttgart and responsible for 42 African states; and Central Command, based at McDill AFB Florida, which is responsible for the Persian Gulf states but also Egypt, Sudan, Ethiopia, Somalia, Kenya & Djibouti. See G. Lubold, ‘Officials Look to Put Africa Under One Watchful Eye’, Army Times (23 Jan. 2006) viewed on 19 Jan. 2006 at . For reasoning on this see F.C. Lane, Profits from Power. Readings in Rent and Violence-Controlling Enterprises State Uni of New York Press (Albany 1979) at ch. 3: ‘Oceanic Expansion: Force and Enterprise in the Creation of Oceanic Commerce.’ Michael Doyle’s last century definition may be apposite if a tad broad: control by a metropole over the internal and external policy of a subordinate periphery. See M. Doyle, Empires Cornell Uni Press (Ithaca 1986) p. 12. S Fainaru, ‘Cutting Costs, Bending Rules, And a Trail of Broken Lives’, Washington Post Foreign Service (29 July 2007) viewed on 16 Oct. 2008 at This has been a persistent problem in Iraq. See GAO, Rebuilding Iraq: Actions Still Needed to Improve the Use of Private Security Providers GAO – 06-865T (13 June 2006) at ‘Summary’ page. See Swiss Govt/ICRC, ‘International Initiative to Promote Respect for International Humanitarian Law and Human Rights Law with Regard to Private Military and Security Companies Operating in Conflict Situations.’ See viewed on 12 Nov. 2006. The UN is not a state, which suggests that some changes to the regime governing international humanitarian law may be necessary if a corporate military and its employees are to bear clearly prescribed responsibilities while enjoying desirable privileges during UN service. For details see ch. 6 Infra note 101. The topic is given lengthy attention in S. Percy, Mercenaries. The History of a Norm in International Relations OUP (Oxford 2007). A notable contemporary source being The Working Group on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Rights of People to Self-Determination. Some shifts in IHL are now in their infancy. See the Polish Institute for International Affairs/ICRC/Regional Delegations for Central Europe ‘Privatisation of War’ Conference Warsaw Poland (27–28 April 2006).


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J.D. Donohue, The Privatization Decision Basic Books (New York 1989) p. 12. See Professor Michael Schmitt’s views in M. Sirak, ‘ICRC Calls for Contractor Accountability in War’, Jane’s Defence Weekly Vol. 41 No. 20 (19 May 2004) at p. 4. E.g., N.D. White & S. Macleod, ‘EU Operations and Private Military Contractors: Issues of Corporate and Institutional Responsibility’, European Journal of International Law Vol. 19 No. 5. Since re-branded ‘Blackwater Worldwide’ then ‘Xe’. J.G. Roos, ‘Private Contractor Tests New Illegal Ammo by Killing an Iraqi’, The Army Times (1 Dec 2003) viewed on 13 April 2009 at . See also J. Scahill, Blackwater … pp. 77–9. UKTS 32 (1907) Cd. 3751. The US ammunition manufacturer is ‘RBCD Performance Plus Ammunition’. Website viewed on 16 Oct 2008 at . For comments see A. Roberts & R. Guelff, Documents on the Laws of War OUP 3rd Ed (Oxford 2000) p. 63. R.C. Burton, ‘Recent Issues with the Use of MatchKing Bullets and White Phosphorous Weapons in Iraq’, The Army Lawyer, Pamphlet 27–50–399 (Aug. 2006) at note 4. Burton cites W. Hays Parks, ‘Sniper Use of Open-Tip Ammunition’, Memorandum for Commander, US Army Special Operations Command (12 Oct. 1990) available at viewed on 28 March 2009. 1977 Protocol 1 Additional to the Geneva Conventions of 1949 1125 UNTS (1979) 3-608 at Art 35(2). See Burton at note 4. UNHCR site viewed on 10 Dec. 2008 at . J.L. Gomez del Prado, ‘Impact on Human Rights of Private Military and Security Companies’ Activities’, Global Research (11 Oct. 2008) viewed on 13 Oct. 2008 on . BBC News, ‘Blackwater Arms Smuggling Probe’, (22 Sept 2007) viewed on 16 Oct. 2008 at . M. Lee, ‘Feds Target Blackwater in Weapons Probe’, AP News (22 Sept. 2007) viewed on 10 Nov. 2008 at . D. Scott, ‘Blackwater Denies Arms Smuggling Operations’, AP News (22 Sept. 2007) viewed on 10 Nov. 2008 at . D. Friedman, ‘Blackwater Could Face Sanctions for Improper Arms Shipments’, Congress Daily (7 Nov. 2008) viewed in on 9 Nov. 2008. Friedman, Congress Daily at web p. 2. See M. Caparini, ‘Licensing Regimes for the Export of Military Goods and Services’, being ch. 9 in Chesterman and Lehnardt (eds); From Mercenaries to Market OUP (Oxford 2007). For example, the US Army has a Criminal Investigation Command. See the US Army CIC site viewed on 15 Dec. 2008 at .


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216 217 218 219

For a series of pertinent articles see viewed on 12 Oct. 2008. E. O’Loughlin, ‘Sandline scandal arms shipment reaches forces’, The Independent (22 May 2000) viewed on 17 Dec. 2008 at . UNSC Res 1132 (1997) 8 Oct 1997 at para. 6. Eg, J. Finer, ‘State Dept Contractors Kill 2 Civilians in N. Iraq’, Washington Post (9 Feb 2006) viewed on 9 Feb. 2006 at ; T. Jackman, ‘US Contractor Fired on Iraqi Vehicles for Sport, Suit Alleges’, Washington Post (17 Nov. 2006) viewed on 17 Nov. 2006 at D. Isenberg, A Government in Search of Cover: PMCs in Iraq British-American Security Information Council (March 2006) p. 12. Pelton, Licensed to Kill… p. 114. KPBS Radio, ‘These Days’. Alan Ray interview of Jeremy Scahill and Doug Brooks (2 May 2007) heard on 3 May 2007 at . See Introduction at note 12. See usnewswire.com, ‘AIUSA To Highlight Emerging Problems with Private Military Contractors During 2006’, Annual Report Release (23 May 2006) viewed on 24 May 2006 at ; A. Cowell, ‘Rights Group Faults US for “War Outsourcing”’, New York Times (23 May 2006) viewed on 24 May 2006 at . Quoted in J. Finer, ‘Security Contractors in Iraq Under Scrutiny After Shootings’, Washington Post Foreign Service (10 Sept. 2005) viewed on 21 Dec. 2005 at <www.washingtonpost.com>. L. Myers, ‘Did Americans Fire on Iraqis for Sport?’ MSNBC.com (21 Dec. 2006) viewed on 22 Dec. 2006 at . Seattle Times, ‘Seattle man could face charges in Blackwater case’ (14 Nov 2008) viewed on 18 Nov 2008 at . G. Thompson & J Risen, ‘5 Guards Face Charges in Iraq Deaths’, New York Times (5 Dec. 2008) viewed on 7 Dec. 2008 at . D. Johnston & J.M. Broder, ‘FBI Says Guards Killed 14 Iraqis Without Cause’, New York Times (14 Nov 2007). J. Swain, ‘Making a Killing’, The Sunday Times Magazine (23 Oct. 2005) viewed on 23 Oct. 2005 at . For one company’s perspective on CENTCOM rules of engagement, the US State Dept and CPA Order – Memo 17, see Aegis, Statement on Video Clip Compilation (29 Nov. 2005) viewed on 21 Dec. 2005 at . D. Price, ‘Congressman Introduces Private Security Contractor Legislation’, at (10 Jan. 2007) viewed on 11 Jan. 2007. Amnesty International USA, Annual Report (23 May 2006) viewed on 24 Nov 2006 at . K.M. Jennings, Armed Services: Regulating the Private Military Industry FAFO Report 532, New Security Program (Norway 2006) p. 42. KBR is an initialism for ‘Kellogg, Brown and Root’.


222

223 224

225

226

227

228

229

230 231 232 233

234

235

Vice-President Cheney was Halliburton CEO from 1995–2000. See in particular remarks by the (then) ranking minority member on the House Committee on Government Reform, Rep. Henry Waxman. Eg. his Statement to the House of 21 June 2005 at . A. Verloy & B. Politi, Halliburton Contracts Balloon Center for Public Integrity (18 Aug. 2004) viewed on 26 Nov. 2005 at p. 2. M. Shnayerson, ‘Oh! What a Lucrative War’, Vanity Fair (April 2005) pp. 138–56. R. Tiron, ‘Judge Orders Army to Release KBR Records’, The Hill (17 June 2006) viewed on 17 June 2006 at . Had Halliburton had not secured government contracts in Iraq through partly non-competitive bidding, it would have secured one third less revenue during 2004. See CorpWatch, Houston, We Still Have a Problem (16 May 2005) viewed on 25 Oct. 2006 at at pp. 1, 3. V.B. Grasso, Iraq: Frequently Asked Questions About Contracting Congressional Reporting Service/Report for Congress (Updated 18 March 2005) at pp. 6–8. Defense Industry Daily, ‘Halliburton-KBR’s LOGCAP-3 Contract Not Renewed’ (14 July 2006) viewed on 15 July 2006 at J. Risen, ‘US: Army Overseer Tells of Ouster over KBR Stir’, New York Times (17 June 2008) viewed on 29 March 2009 at . Defense Industry Daily, ‘Halliburton-KBR’s LOGCAP-3 Contract…’; Washington Post/Reuters, ‘US Army to End Halliburton Deal’ (12 July 2006) viewed on 13 July 2006 at . OMB Watch, ‘Iraq Contracts Shrouded in Mystery’ viewed on 26 Nov. 2005 at . OMB Watch, ‘Iraq Contracts…’ S. Borenstein, ‘Auditors for Iraq War Withdrawn in 2004’, Miami Herald (18 Oct. 2005) viewed on 19 Oct. 2005 at . Y.J. Dreazen, ‘Auditor Says Violence, Incompetence, Corruption Stymie Rebuilding Effort’, Wall Street Journal (31 Oct. 2005) p. A14 viewed on 31 Oct. 2005 at . Yakima-Herald (31 Jan. 2006) viewed on 1 Feb. 2006 at . And it is probably much higher. See J. Glanz, ‘Tough Job in a War Zone: Keeping Contractors Honest’, The New York Times ‘Watchdog’ (3 June 2006) viewed on 3 June 2006 at . See C. Simpson, ‘Pentagon Has Yet to Ban Contractors From Using Forced Labor’, Chicago Tribune (27 Dec. 2005) viewed on 28 Dec. 2005 at ; A.E. Cha, ‘Underclass of Workers Created in Iraq; Many Foreign Laborers Receive Inferior Pay, Food and Shelter’, Washington Post (1 July 2004).


237

C. Simpson & A. Madhani, ‘War Fuels Human Trade’, The Chicago Tribune (13 Oct. 2003) viewed on 14 Oct. 2005 at ; D. Phinney, Using Asia’s Poor to Build US Bases in Iraq’, Corpwatch (15 Oct. 2005) viewed on 17 Oct. 2005 at ; and more generally, D. Pugliese, ‘The Private Security Detail’s Dirty Secret: Armies of Low-Wage Workers Form the Backbone of Private Military Contracting in Iraq’, Ottawa Citizen (13 Nov. 2005) p. B5 viewed 15 Nov. 2005 at . C. Simpson, ‘US Military Orders Human Trafficking Reforms in Iraq’, Chicago Tribune (24 April 2006) viewed on 25 April 2006 at .

6 A Modest Proposal

6.1

Introduction: solving problems

This chapter depicts a fresh peacekeeping and intervention model. The new structure attempts to harness contractor strengths whilst addressing shortcomings identified in the prior two chapters. This intention does not extend to entities which may act on behalf of a party other than the UN Security Council. Aside from latent possibilities within existing Charter powers, there is at present no other international authority that might legitimise armed operations within a nonconsenting state by an agent on behalf of a principal which may be a state or non-state entity. One acknowledges that since 1945 there have been several challenges to Security Council powers arising from unauthorised military action by both regional associations and individual states. Notwithstanding these trials, the collective consequences in both international law and practical politics have not included an early and categorical end to Security Council authority. Although blemished, this authority remains the subject of informed optimism which supports a proposal in five parts. A constitutional basis for new institutions provides structural footings. This is followed by a disciplinary structure which should improve on present donor arrangements. The third part concerns performance measurement – a matter overdue for analyses by arms-length consultants not employed by the UN. Next is an example where company troops deploy in support of UN and NGO agencies. All would contribute to a revival of UN trusteeship geared to assist distressed populations within faltering states. The fifth part summarises those elements that constitute one view of a new model which is legally plausible and potentially practical. A summary follows. 192

A Modest Proposal 193

6.2 An adequacy of Charter powers and the new directorate Contract forces appear constitutionally feasible within prerogatives the Security Council may choose to exercise in Chapter VII. A basis for agreement – or perhaps collaboration – amongst the Permanent Five and four of the rotating ten members seems a more promising idea than the alternative, which is to create a Secretariat entity via Article 97. The smaller size of the Security Council provides greater scope for effective action than is likely through the General Assembly. In any case, an absence of veto from the P5 would have to accompany any Chapter VII mandate.1 The key organ would be a new ‘Directorate for Military Contracting’ described in diagrammatic form in Appendix I. Should a Secretary-General attempt to create the Directorate as an arm of the Secretariat through Article 97, it could in theory be founded in an expanded Department of Peacekeeping Operations or the newer Department of Field Support. However, it seems likely that an unreceptive cohort within the General Assembly would exert irresistible and opposing pressure on the Secretary-General. This would not be the first time states’ views are likely to affect a Secretary-General’s decision regarding deployment of corporate military forces.2 Less than two years after the creation of UNEF, Louis Sohn in 1958 emphasised the intention of Charter drafters to grant very wide powers to deal with threats to the peace.3 He stressed that these powers included intervention in matters hitherto considered sovereign prerogatives of a domestic nature.4 Helpfully, Charter Article 42 refers to military intervention without excluding the use of any particular force through which the Council might choose to restore international peace and security. Member forces may be employed for that purpose but not exclusively. Nor do measures to secure forces exclude contract arrangements.5 The wording of Article 42 is broad enough to leave open the method of recruitment of UN forces and the nature of their command, an observation Professor Bowett made over 40 years ago.6 Nor would a decision made under Article 39 to set up a force under Article 42 by means of private recruitment breach Article 43, as it is only the use of national contingents which depends on the conclusion of special agreements under the latter Article.7 Consequently, it appears the Security Council might raise and maintain a contract force consistent with the Council’s primary responsibility for international peace and security.8 In discharging this obligation, the fluidity and hazards of modern and predominantly intrastate warfare suggest that


Chapter VII is the single, prudent source of authority. This is because only Chapter VII permits the range of alternatives highly desirable in these operations. Commentary on potential hazards has been plentiful.9 The relationship between the proposed Contractor Directorate and Article 29 is also favourable. Article 29 enables the creation of subsidiary bodies for the performance of Security Council functions which are impractical for the Council to exercise, but are necessary for the maintenance of international peace and security. Moreover, in Sydney Bailey’s accommodating phrase, an organ created as a consequence could be ‘…a person, or a committee, or a peace-keeping force’.10 For the same purpose Article 29 enables delegation of the Security Council power to take binding decisions.11 Should a Directorate for Military Contracting12 be formed by the Security Council through Article 29 authority to create subsidiary organs, the new body would carry responsibility for two duties. The first would be assessment of tender applicants. Successful candidates would be graded through a certification system which would accredit those holding competencies required to carry out a wide spectrum of peacekeeping and intervention deployments. A healthy public interest would dictate that responsibilities, approximate numbers of employees and bands of remuneration would be publicly disclosed. Successful contractors would not become permanent elements of the Secretariat but would hold fixed-term contracts for which they would periodically retender to the Directorate in open competition. The second responsibility held by the Directorate would be the administration of organs within the quasi-state apparatus set out in Appendix I and headed ‘Governance’. The most important of these roles would be the administration of an endogenous criminal justice apparatus. Although the Security Council is competent to promulgate a military law and regulation to be implemented by the administrative organ it creates, it may prove more practical to delegate this power to the new Directorate.13 The law and accompanying regulation would supply administrative guidance to contract forces through enumeration of the purposes and powers of each governance organ and the rest of the structure set out in Appendix I. Commentaries in the form of plain English manuals would explain the obligations and authority these organs would create for corporate agents, their employees, managers and boards; and UN organs and third parties.

6.3

Discipline and criminal law

The absence of effective criminal laws applied to security contractors in Afghanistan and Iraq invites comparison with standards of criminal


justice in UN operations. Curiously, public criticism of frailties in the UN system seems to have been comparatively faint and ephemeral. If this suggests faith in historically superior conduct, this confidence is misplaced. Public ignorance diminished somewhat when systemic flaws gained prominence over the widespread sex scandals of the last few years;14 and more recent allegations of arms and gold trafficking in the DRC by Pakistani troops.15 There has been no shortage of other examples of UN forces’ corruption and racketeering in places as diverse as Cambodia,16 Somalia17 and Bosnia.18 These incidents have been to some extent predictable. Discipline amongst UN contingents is a national responsibility held by contingent commanders and sovereign states have always been loath to allow other authorities to exercise criminal jurisdiction over their troops. This is why the UN has never been in a position to prescribe the nature of criminal justice to be exercised by peacekeeping participants.19 The consequence has been regrettably varied standards amongst UN units.20 Wolfgang Munch put the matter concisely: …it is up to the military justice of the troop contributor to investigate [criminal] issues in cooperation with the Office of Internal Oversight Services, eventually indict and bring the case to justice. Any other solution is not imaginable since no troop contributor is likely to be prepared to accept that other authorities than its own exercise criminal jurisdiction over its military forces.21 Even defenders admit that the system is far from perfect.22 Because the present ‘Status of Forces Agreement’ provides that each contingent is subject to its own criminal laws, this implies the strengths and weaknesses which inhere in each.23 The immediate past Secretary-General also emphasised that breaches of international humanitarian law by UN military personnel remain the responsibility of their national courts.24 Participation agreements are supposed to bind contributing states to ‘firm and effective jurisdiction’.25 In practice, those alleged to have carried out offences involving harm to the host population are often repatriated.26 Their home governments are required to report action taken to the UN but this is no guarantee of proper process. In turn, the UN obligation is merely to notify the host state of the result of any case in which it has an interest.27 And this notion is only meaningful if there is a government to notify. If carried out at all, home state courts-martial proceed consistent with the openness or secrecy preferred by the relevant state. There can be no certainty of procedural probity or forensic adequacy. Nor can


there be confidence that political interference will be absent. A rigorous prosecution could certainly carry the name of an already embarrassed state into thickets of public disrepute. In addition, there can be no fixed standard of expectation as to how humane (or perhaps, how brutal) one should expect punishment inflicted on an accused who is found guilty. Governments may also be too poor or too indifferent to investigate crimes carried out by members of their armed forces. In this climate, regular injustices to host state victims seem likely where criminality is repeatedly alleged. On the other hand, an absence of criminal trial standards consistent with internationally respected norms does no service to an accused. A sovereign military force acting in the name of the UN may prosecute a suspect who could face a regime inconsistent with the UN’s own International Covenant on Civil and Political Rights.28 Alternatively, for reasons of political expedience s/he may be quietly spirited away, far from any such process. A contract arrangement should deliver an improvement on this rather favourable bargain between the UN Organisation and its members. This is not conceptually difficult. The better militaries long ago created standards of process and substantive law which could be adapted to deliver encouraging results in the contractor context. Corporate forces would after all face many comparable scenarios. Helpfully, the Security Council’s competence to establish an international criminal tribunal to serve the Council’s principal function of the maintenance of international peace and security was affirmed in the ICTY Tadic case.29 As the UN criminal tribunal would be limited to matters arising from deployments concerning threats to the peace, the Security Council’s intention would not fall before a Charter separation of powers and the limited scope of Article 42. The Tadic decision is consistent with Bowett’s explanation that the constitutional basis supporting subsidiary organs with given functions lies in articles justifying those functions and not in the Article 29 general power to establish those organs.30 Article 29 is concerned with procedure rather than limits to substantive authority. The criminal court would be competent to prosecute corporate as well as human persons, whether uniformed or otherwise. These would include directors and management of a UN contractor.31 One is aware that the trial of a civilian rather than military contractor within a court having military attributes will arouse familiar criticisms attached to trial rights of civilians.32 In the corporate context, civilian consent to be bound by UN military law would serve three purposes. The first would be prompt location of a suitable judicial forum for criminal trials. Second, UN military law could proscribe with some precision at


least most of those moral hazards which are likely to tempt white collar management and directors.33 Third, uniformed commanders in the field would hold authority to direct civilians accompanying the force consistent with the good order and discipline of the unit. The latter is not new. The Australians have in place a system which controls consenting civilians in identified theatres, an arrangement that appears to provide operational cohesion.34 The new court would observe internationally recognised principles of criminal justice identified in international treaties to which the majority of states have bound themselves;35 along with adherence to international customary law and desirable principles of civilised conduct as recognised by most states.36 These attributes would be assisted by another court characteristic: mobility. The court would shift about to wherever its presence would be required. This benefit would provide palpable advantages in witness accessibility and other evidentiary matters. And should there be a conviction, the court would also exercise competence to compel the transfer of sums in compensation from a guilty person or a company to a person or other entity harmed or who had suffered loss at the hands of criminal or negligent UN corporate forces. Supplying a measure of material justice would be an integral part of the court’s purposes. UN responsibility for effecting material remedies is not new, as the proposed court revives aspects of a compensation process stretching back to the 1950s.37 Defining the nature of the bureaucracy which would enforce the new law would require an equally unflinching sense of invention. A military law and regulation promulgated by the Contractor Directorate would be enforced by a cadre of UN military police, forensic technicians and military lawyers. The key attribute in their recruitment is that all three occupations would only be filled by individually recruited civil servants rather than formed teams sent by states. There are two reasons for this requirement. First, states’ units would inevitably serve unwanted and often subversive home-state agendas. Second, the quality of personnel would vary and a properly objective credentials system would build greater confidence. An improved justice administration resulting from individual recruitment to Directorate standards would stand a better chance of competently enforcing the military law from one end of the corporate chain of command to the other.38 Troops employed by a UN corporate legion would be deployed subject to two arrangements: collective status-of-forces agreements and bilateral agreements between individual contractor home states and the UN. Mandates accompanying SoFAs are likely to be somewhat


more permissive than past examples, as corporate troops’ tasks will probably be more hazardous than those encountered on other operations. The nature of each mandate would to an extent determine appropriate privileges and immunities. These SoFAs would carry some similarities in form to those agreements which are familiar to sovereign troop formations on UN deployments.39 The new SoFAs would seldom permit receiving state jurisdiction. Receiving state competence to exercise its responsibilities may be doubtful, manipulated to undesirable ends, or altogether absent. The new UN police, forensic technicians and lawyers would instead construct cases dealing with contractor breaches of UN military law to be heard in the mobile court. Bilateral agreements between contractors’ home states and the UN would provide both administrative support and political coherence to corporate SoFAs in the following fashion. In the preamble, the parties would acknowledge their citizens’ sense of international civic purpose in undertaking UN agency work and the personal altruism this is likely to entail.40 That posture would establish some political distance between laudable Security Council purposes and the mercenary issue addressed in three treaties: Article 47 of Additional Protocol I to the Geneva Conventions;41 and the African and International Conventions which purport to suppress mercenarism.42 Particularly salient is the mercenary motive, which in Additional Protocol I is asserted to be ‘private gain’.43 This is a speculative assumption. Whether serving the UN or less desirable purposes, one’s motive(s) may be quite altruistic or at least selfless. Non-national participants in today’s religious conflicts provide a sobering example of the latter. On the other hand, it is difficult to imagine any state’s soldier unambiguously attaching no value to the pay s/he receives.44 Like mercenaries, they too are pleased to benefit from private gain. A similar criticism regarding remuneration could be directed to motive in both the African treaty45 and the more recent International Convention.46 It is noteworthy that the second Special Rapporteur for mercenaries in 2005 observed that ‘…the United Nations itself employs entities that may be identified as mercenaries under the current definition…’ 47 [within the Convention.] Outwardly, governments may grow to applaud their citizens’ international service as commendable. However, there are also reasons why elected officials will wish to be politically dissociated from nationals who engage in hazardous UN service. This will certainly be the case where their citizens occasionally find themselves in unpleasant or sordid circumstances likely to prove embarrassing to their home governments. For this reason an early part of bilateral agreements would


establish the primacy of UN criminal law where there exist home states’ laws of similar purpose and applicable jurisdiction. An individual volunteer’s volition would tie praiseworthy ambition to a respected criminal justice system, the responsibility for which would be reassuringly dispersed. Governments will realise that responsibility for managing the consequences of conduct by their occasionally delinquent nationals may extend widely: to individual superiors depending on the circumstances, their incorporate employer (the agent), and conceivably, the agent’s principal (the UN). All would be pleasingly remote from the home state and its watchful government. One is mindful that states may not contract out of certain international humanitarian and criminal responsibilities. One example is the prosecution of persons – regardless of nationality – alleged to have committed grave breaches of the Geneva Conventions.48 Yet the risk of attracting state responsibility in these or other circumstances would seem slight. On the other hand, states may not lightly resist the compulsion arising from Chapter VII resolutions attending a contract legion’s recruitment or deployment. Most governments will see an advantage in obtaining kudos through support of a reliable UN criminal court which addresses its responsibilities promptly and far from the shores of volunteers’ home states. This would diminish concern over the risk of being drawn into unwanted criminal enforcement responsibilities where the consequences would include a cloud of unwelcome moral odium hovering about an accused person’s state government. One might observe parenthetically that the discomfiture of the latter would be considerably greater if the same government was to be reproached by angry electorates for having ordered their own troops to participate in UN ad hoc forces where they had met a similar fate. Two aspects remain. One is a second tribunal, which would hear industrial relations matters. Contracts between company employees and their employers would require the parties to resolve grievances and seek remedies within the industrial tribunal. The intention would be to avert expensive litigation and forum-shopping49 as far as this may be possible. Last, a purpose-built UN penitentiary and asylum would stand behind the mobile court. The ICTY and ICTR50 rely on UN member states to fulfil this task but that is a less than enviable arrangement. Penal and therapeutic institutions vary notoriously in their standards. UN members easily possess the collective resources required to build an institution which would be of relatively limited size and unexceptional sophistication; yet would sustain public confidence where observers might suspect a state prison to exhibit depressingly conventional


brutalities. In contrast, at the conclusion of a sentence of humane incarceration, a contractor/prisoner would be repatriated to his or her home state. And the orderly procedure for this repatriation would have been prescribed within the terms of the relevant UN/home state bilateral agreement.

6.4 Measuring efficacy in the past and (more adeptly) in the future Like other ideas which involve an element of experimentation, a corporatised peace operations model could prove optimistic, naïve, impractical or more generally ill conceived. For this reason a future Security Council would benefit from the adoption of fresh methods with which to gauge the efficacy of both corporatised and ad hoc operations; then determine appropriate deployments while devising more accurate mission prognoses. The question is a pointed one as governments have never been able to defend peacekeeping convincingly, because there are no widely accepted criteria to which one may refer in assessing performance. Oddly, this is something that attracts limited comment in the literature,51 although Paul Diehl, Duane Bratt and Majorie Ann Browne have conducted studies resulting in mostly pessimistic conclusions. Duane Bratt assessed success or failure according to four indicators: mandate performance, facilitation of conflict resolution, conflict containment and limitation of casualties.52 He measured performance in each category as ‘complete success’, ‘moderate success’ or ‘failure’. Operations he surveyed had been marginally successful in mandate performance;53 largely unsuccessful in facilitating conflict resolution;54 most successful in conflict containment;55 and only moderately successful in limiting casualties.56 Overall, this was a mediocre record.57 Paul Diehl’s research applied two criteria: deterrence or prevention of violence in the area of deployment;58 and resolution of disagreements underlying the conflict.59 In meeting the former criterion peacekeeping was very variable but unsuccessful in large measure.60 In terms of the latter criterion it was clearly a failure more often than not.61 Marjorie Ann Browne examined seven peacekeeping operations.62 Her most illuminating observation was that if one assessed an operation according to whether or not it resolved the underlying dispute which generated the conflict, only two of the seven deployments studied were successful.63 There has been some criticism of Diehl’s criteria;64 and Bratt has acknowledged that an emphasis on one of his criteria over another will


slant perceptions dramatically.65 Nor is Browne’s method of assessment free of difficulties.66 Yet Bratt, Browne and Diehl at least attempt to fashion assessment criteria in a field where this remains infrequent. For this reason it seems unfortunate that the UN has yet to publicly adopt analytical methods which might prove whether peacekeeping in various forms is anything other than an occasional success – and if so, best discarded where there may exist more productive alternatives. Put another way, UN peacekeeping has evolved within practical constraints evident in the UN system. But this is not the same thing as first determining what actually extinguishes armed conflict and in particular its dominant, intrastate variant.67 Determining the most effective means of extinguishing internal conflicts should in turn influence the nature of UNSC mandate formation. One might begin with an assessment of the conduct and outcome of every UN operation since 1956 through rigorous quantitative and qualitative methods. By examining the merits and demerits in every ad hoc deployment, advisers are likely to be in a position to argue with superior knowledge whether particular types of mission stand a greater or lesser likelihood of success in the future. Relevant factors may include systemic and regional influences, terms of settlement and third party conduct, ‘ripeness’, various types of earlier peacekeeping and the use or misuse of force; mediation, re-negotiation and de-mobilisation; and the establishment of new norms and proxy governance.68 Studies might suggest the suitability in deployment of logistics contractors, development and aid workers; of states’ uniformed units indoctrinated with objectives common to any of more than four generations of peacekeeping; the introduction of negotiators and diplomats; or more radical steps, like selective bombardment followed by the insertion of combat forces tasked to subdue armed resistance amongst genocidaires or criminal cliques in government, an insurgency, or both. Whatever is indicated, if subsequent UN action succeeds it is likely to do so in part because of improved research. In devising these analyses the UN would benefit from enlisting minds which are unaccustomed to the present state of affairs. International civil servants may or may not possess the necessary training. What is needed is the numeracy and acuity of mind that thrives on difficult problems of large dimension and complexity. This kind of intellect is found at the business consulting houses. Their commercial perspective would not be free of institutional deficiencies peculiar to the corporate mentality. Some large consultancies in particular have strong personnel and contractual links amongst the Permanent Five.


A prominent example is ‘Booz Allen Hamilton’ and the United States government.69 Some BAH’s largest clients are the US armed forces and America’s National Intelligence Director Mike McConnell was BAH ‘director of defence programs’ prior to his appointment in 2007.70 Accordingly, the UN would be wise to choose advisers who hold limited associations with governments. An unfortunate outcome would demonstrate the same vice of states’ influence through a corporate source rather than conventional manipulation of the international civil service. Advisers chosen with some discrimination would seem likely to address their task with at least somewhat less of the counterproductive hand of states’ interests tacitly or implicitly directing their actions.71 These consultants would form one of two groups of analysts within the box entitled ‘Third Party Business Consultants’ at the base of Appendix I. The second group would be drawn from those companies which carry out predictive programming for defence departments. These firms draw on software, games, mathematical analyses, military history and real time data. Governments in advanced states have employed them for years.72 Combining fresh qualitative and quantitative analyses with predictive modelling would assist a revitalised approach to planning and assessment of future operations. Contractors in the field would provide both consultant groups with regular situation reports, the provision of which would be a contractual obligation integral to any tender. Resulting studies in planning and scenario building would build less than perfect simulacrums of the future. But these would appear to be an advance over present circumstances.73

6.5

A further step: revived trusteeship + contract forces

In his report entitled In Larger Freedom, Mr Annan suggested that the UN Trusteeship Council was outdated and should be abolished.74 An apparently compelling reason was that Palau was the last trusteeship territory and it had become self-governing in 1994. In the context of post-colonial history it is not difficult to discern another motive. For years trusteeship existed in uneasy tension with political liberty. This was inevitable because the concept involved controls over the conduct of others in order to secure the welfare of those coerced. This has always been a politically fraught concept, awkwardly balancing assistance with limits to autonomy. Nor has UN trusteeship been viewed as wholly virtuous by peoples living under it. Some may have held sound grievances. William Bain has described a trusteeship architecture that did not


separate the welfare of dependent peoples from international security.75 One consequence was the early promotion of self-government as an alternative to the principle of universal independence. This of course provoked those wishing to hasten the end of all empires, embrace selfdetermination and assert their equality.76 Eventually they were rewarded as trusteeship roles dwindled with colonialism’s demise.77 UN General Assembly Resolution 1514 of 1961 famously repudiated the inadequacy of colonised peoples’ preparedness as a basis for deferral of independence.78 In addition, the General Assembly’s 1970 legitimation of violence in the struggle for independence made the complete redundancy of trusteeship abundantly clear.79 This was reinforced by an evolving human rights discourse.80 The UN consequently promoted self-determination even where the survival of some embryonic states seemed doubtful. The suggestion that each new state might not be able to function unassisted was perceived by many as an attack on the ideal of self-determination.81 Inevitably, statehood was sometimes gained without the necessities: a stable civic culture enjoying popular participation; reliable social cohesion, tolerance of other races, faiths and tribes; respect for the rule of law; restraint in individual and collective conduct over grievances; and belief in honest government administration. With hindsight it was hardly surprising that the clarion call of self-determination led to a string of states retreating into medievalism and tyranny rather than modernity and success. The UN was not alone. Outside of multilateral frameworks, attempts to create stable democracies by powerful occupying states have delivered a chequered record at best.82 In recent years there has been a shift on two fronts. One has been the rise of a philosophy of human security, in which a state’s legitimacy (or more precisely, that of its government) depends upon how effectively it delivers fundamental human needs like clean water, food, shelter and effective health care. These are markedly different requirements to those which supply state security. Second, Mr Boutros-Ghali in 1992 correctly saw that the time of absolute and exclusive sovereignty had passed.83 He referred to a balance between the ‘…needs of good internal governance and the requirements of an ever more interdependent world’.84 The precise implications of this statement were perhaps intentionally less than clear, but after the 9/11 attacks they have been seen through startling hindsight. Since those assaults the West has gradually become less inclined to ignore at least some failed states. Their sub-functioning is no longer considered as peripheral to the interests of the wealthy and prosperous as some realists had


thought.85 For some time now Western self-interest has supported a case for intervention in at least some chaotic states,86 although these self-interested purposes sit uneasily with Charter intentions. This distinction to one side, some in the third world would surely benefit from a benign form of what the Kenyan author A.A. Mazrui called ‘re-colonisation under the banner of humanitarianism’.87 This does not seem outrageous in light of Boutros-Ghali’s reflection and subsequent events. Contiguous or proximate states may be lukewarm, suspicious or even hostile towards humanitarian intervention in the interests of the invader and invaded. However, uneasy neighbours will most certainly wish to avoid threats from organised crime, a tide of unwelcome refugees, years of debilitating warfare, border violence and demands for aid few can afford. It is noteworthy that the authors of The Responsibility to Protect accepted that a crisis in one state would result in neighbouring state conduct driven by motives other than selflessness; and acknowledged these motives in the context of a willingness to participate in international humanitarian intervention.88 This view is further supported by burgeoning legal ideas that provide a prospective basis for change in this direction.89 Sovereignty has in any case been compelled to adapt to multiple challenges of a transnational nature. These influences are to some degree invulnerable to the effects of policies created by individual governments of even the most democratic nature. Equally, successful controls are beyond the compass of instruments wielded by individual state technocracies, however skilled and enlightened. These matters include economic globalisation and the expanding reach of transnational corporations, changes in human migration for good or ill, the effects of collapsing financial markets, preparation for disease pandemics, surveillance and suppression of international organised crime; and the effects of and means to address global warming. Simultaneously, the clamour for humanitarian intervention in the face of widespread human rights abuses becomes louder by the day. Sovereignty has proved remarkably adaptable to challenges from within and without. It remains sufficiently robust to endure temporary attenuation and occupation, both in citizens’ interests and those of apprehensive neighbours or those further afield. Both of the latter will be keen to keep political violence away from their relatively comfortable lives. Nor is there anything new in the UN assuming roles that sit firmly at the heart of state administration. The UN ‘Temporary Executive Authority’ in West New Guinea in the 1960s was an early example of


UN intrusion into governance.90 The complex peacekeeping operation in Cambodia also involved the appropriation of some state powers.91 Simon Chesterman has identified several later peacekeeping operations where stability was built through ‘benevolent autocracy’.92 In at least four states the legitimacy held by transitional authorities in part rested on military occupation.93 One should note that even with the exercise of this authority, governance has rarely proved as straightforward as the occupiers may have wished. Participating governments have at times been anxious to pull their troops out too early, thereby precipitating further instability. For example, donors’ haste in extricating administrators, police and soldiers from East Timor contributed to a return to chaos in 2006.94 At a technical level it does not seem likely that the well intentioned might revitalise a form of supra-national rule by utilising the defunct machinery of the Trusteeship Council. The Charter in any case excludes UN members from the Council’s ambit.95 But some fresh apparatus is nonetheless conceivable and The Responsibility to Protect hints broadly at what is needed. Lyon suggests that a term other than ‘trusteeship’ would at least avoid the indelible connection with Chapters XII and XIII of the Charter.96 So be it. Three points remain. First, strong versions of sovereignty are already attenuated in various ways by diverse global forces. Second, unaddressed human misery on the grand scale obliges ethical people to consider new ways of thinking about causes and how to deal with them. Choices should include a role for humanitarian intervention. Third, Western self-interest demands greater involvement in unstable states. If there is an enlightened version of revived trusteeship to hand, the soldiers required for its military administration will have to come from somewhere. Most governments will recoil from the task, mindful of inevitable allegations of neo-colonialism, something difficult to rebuff in the face of probably dissatisfied and suspicious indigenous leaders. There exists no convenient space in which to assert a rosy predictive view of these matters. Apart from demands and uncertainties on the ground, renewed trusteeship would be ideologically contested and frequently attract unwelcome historical analogies. Even in the face of some fiercely anti-paternal conventions, it seems increasingly possible for the tension between trusteeship and sovereign equality to tip towards intervention in states characterised by ethnic cleansing, massacres, starvation – and indispensably – a threat to big power interests. Recent indicators of instability amongst the more desperate states suggest little reason for optimism. One might consider


the Sudan, the DRC, Ivory Coast, Iraq, Chad, Somalia, Haiti and half a dozen others.97 It may be time to shake off present conventions, revive trusteeship under one synonym or another and admit the new term to the lexicon of international diplomacy. William Bain has identified the bleak irony likely to result: a future which will be more rather than less violent if states are unwillingly placed in what he calls ‘international receivership’.98 Perhaps. But if new trusteeship does emerge, a professional UN security contractor would be a practical leg upon which to balance the military objectives arising. There are at least three variations to consider: a combat force, an adjunct force capable of multiple roles in support of other UN agencies; and an armed constabulary unit suitable for administration of a lengthy occupation in tandem with imposed civil authority. It is not difficult to re-conceptualise old practices in new forms that serve desirable ends.

6.6 (i)

Five legs to a new UN apparatus A UN Directorate of Military Contracting led by a Military Inspector-General The Directorate would carry out two tasks: first, evaluation of an applicant’s claim to standards of capability and experience specified in a UN tender. The Directorate would subsequently license successful tenderers for specific or more general purposes. The second task would be administration of those entities within the quasi-state apparatus set out in Appendix I and headed ‘Governance’. Promulgation of a suitable military law and regulation for this purpose would be an early responsibility. The UN military law would reflect both humanitarian principles and military efficacy. A tender applicant would include the law in indoctrination and training as a matter of contractual responsibility.

(ii) A UN Police, Forensic Investigation and Legal Team A team of UN police, forensic specialists and military lawyers would travel with contract forces in the field. Should the team locate evidence of a crime, it would secure a crime scene, collect and analyse evidence and conduct interviews.99 The lawyers would prepare a brief for trial should evidence support the likelihood of a conviction on charges arising from the UN military law. (iii) A UN Criminal Court & Industrial Tribunal The UN criminal court would apply internationally recognised standards of process and substantive law to the trial of an accused.


The court would be mobile, sitting as and when required and subject to public scrutiny as it moves about theatres of operations. The court would be competent to impose terms of incarceration in prison for the sane criminal, or a therapeutic environment for those not fit to plead. Powers devised in the new law would endow the court with authority to determine remedies (usually compensation) awarded to victims of proven contractor misconduct or some forms of negligence. The industrial tribunal would attempt to settle disputes arising between employees and contractor companies. Contentious issues might include pay, non-financial benefits and insurance. The industrial tribunal would also be mobile. (iv) A UN Penitentiary and Psychiatric Facility States’ prisons and institutions for the disturbed are often undistinguished by the quality of their conditions, care and administration. A more reliable means of determining that a court sentence or direction will be carried out in an humane manner is for the UN to create a small, purpose built facility. Here, the convicted and those unfit to plead would be housed in suitable conditions, appropriately occupied and rehabilitated to the extent possible, prior to eventual repatriation. (v)

6.7

Performance Measurement & Prognostic Support The UN would benefit from consultants’ assessments of the effectiveness of past operations using modern analytical methods. This contribution would be bolstered by military prognostications created by specialist companies whose product enjoys some confidence amongst governments of several advanced states. Both forms of contract assistance seem likely to influence the Security Council in the creation of more prudent and consistently successful mandates.

Some criticisms

A proposal for a contract legion would be dependent on funding voted from the General Assembly,100 something critics would identify as a weakness. They would be correct. Those with an eye for history will know that funding has always been an Achilles heel common to UN forces, whatever their origin. The key is likely to be whether prospective benefits will be seen to justify the experiment. The case will certainly require tenacious promotion. But in time, one can conceive a sufficiently convinced and newly motivated Assembly voting


by a two-thirds majority for a budget adequate to sustain a battalion of troops with armour and air mobility. This would probably be the practical minimum to begin. Relative to global military expenditure the cost would be inexpensive in terms of the utility the force could demonstrate. And in the event that early operations proved politically successful, a 5000 strong reinforced brigade would be a reasonable aspiration. One recalls General Dallaire’s belief that a single mobile brigade could have suppressed much of the genocide in Rwanda during 1994.101 Some criticisms have a legal aspect. One is uncertainty over the extension of privileged belligerence to agents of a non-state power. Put another way, there is some doubt over the application of those protections provided by the law of armed conflict. The issue is that the UN is not a state and cannot become a high contracting party to treaties concerned with international humanitarian law.102 In a test of the Security Council’s quasi-legislative or executive authority, some states and belligerent sub-state actors may resist that Chapter VII authority which would compel recognition of the privileged belligerence of corporate troops as a consequence of agency agreements founded in Chapter VII powers. Of course, prospectively unmet obligation of this nature is no reason to baulk at attempts to create order supporting worthwhile objectives. Another criticism is the hostility with which some governments have viewed international criminal tribunals where the fate of their nationals is an issue.103 Others may attempt to restrain their nationals from enlistment in a UN corporate legion. Opponents will also raise a more general objection: that Charter founders were not likely to have contemplated contract forces. This may be so but it is an observation rooted in an age when perceptions of states’ obligations and the remedies at hand were very different. The International Court of Justice as early as 1949 affirmed that the UN possesses powers which although not express in the Charter, ‘…are conferred upon it by necessary implication as being essential to the performance of its duties’.104 Those duties necessitate the creation of means to deal with problems peculiar to succeeding generations. And these matters are to a degree inherently unpredictable. In recent years the invention of international criminal tribunals replete with coercive powers did not exceed either the creativity of lawyers or the authority of the Charter.105 It was certainly unnecessary for these tribunals to be explicitly identified within the Charter. One imagines that to historically minded draftspersons of the 1940s, contract forces of tomorrow


would appear far less novel than those tribunals so widely accepted today.

6.8

Summary

This chapter contains a proposal through which the UN may succeed in several purposes: the location of Charter powers necessary for progressive development; and (without exceeding these powers) the creation of a feasible governance structure built around a new UN Directorate for Military Contracting. The Directorate would be the hub of an adjunct to conventional sovereign deployments in peacekeeping and other operations. This was followed by details of other facets of the model: a reliable criminal justice court, penitentiary and industrial tribunal; and the creation of new forms of analytical support. The latter integrate modern predictive modelling with evaluation of past performance in order to prepare future operations along more suitable lines. This was followed by an argument in support of fresh UN trusteeship in an inventive form; a short synopsis which described five legs supporting the new apparatus; and some reasonable criticisms. It remains unclear whether and to what degree the UN and PMSCs are likely to expand co-operation. The Conclusion provides some informed conjecture as to desirable forms of diplomatic negotiation that may lead the UN and the industry towards greater engagement.

Notes 1

2

at Article 27(3). Should a Secretary-General push for a ‘Directorate of Military Contracting’ closely tied to the Security Council, the predictable risk is limited sympathy amongst a constituency mindful of normative proscriptions on privatised forces and wary of implications for enhanced Security Council means. See Supra ch. 3 in which Mr Annan in 1995 considered engagement of an effective PMC to separate homicidal 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 lethally ineffective path. See UN Press Release, SG/SM/6255 (12 June 1997) viewed on 30 April 2006 at ; and UN Press Release SG/SM/6613/Rev.1 (26 June 1998) at p. 6 of 8 viewed on 9 April 2006 at .


4 5 6 7 8 9

10 11 12

13 14

15

16

Sohn canvassed a permanent force without the corporate element. See L.B. Sohn, ‘The Authority of the United Nations to Establish and Maintain a Permanent United Nations Force’, American Journal of International Law Vol. 52 (1958) pp. 229–30; and more generally, Charter Arts 1, 24 and 39. These being matters ‘…essentially within the domestic jurisdiction of any state’, as described in Art. 2(7). Art 43(1) is silent. See D.W. Bowett, United Nations Forces Stevens & Sons (London 1964) p. 277. Bowett, United Nations…p. 277 note 38 & p. 278. Art. 24(1). See R. Kaplan, ‘The Coming Anarchy’, Atlantic Monthly (Feb. 1994) and J. Rapley, ‘The New Middle Ages’, Foreign Affairs (May/June 2006.) 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? Ashgate Pub. (Aldershot 2004) p. 22. S.D. Bailey, The Procedure of the UN Security Council 2nd ed. Clarendon Press (Oxford 1988) p. 294. See E. DeWet, The Chapter VII Powers of the United Nations Security Council Hart Pub. (Oxford and Portland 2004) pp. 341–2. This is a modern variation on Siekmann’s permanent model. See C.R. Siekmann, ‘The Legal Basis for an Individually Recruited Permanent UN Force’, being ch. 8 in D.A. Leurdijk (ed.), A UN Rapid Deployment Brigade: Strengthening the Capacity for Quick Response Netherlands Institute of International Relations (Clingendael, The Hague 1995). For some historical background see L.B. Sohn, ‘The Authority of the…’ Perhaps the most publicity attended sex crimes by blue helmets in MONUC in the DRC. See W. Munch, ‘Wrongdoing of International Civil Servants – Referral of Cases to National Authorities for Criminal Prosecution’, Max Planck UN Yearbook No. 10 (2006) note 44 at p. 87. More generally, see K. Annan, ‘Special Measures for Protection From Sexual Exploitation and Sexual Abuse’, Secretary-General’s Bulletin Doc. ST/SGB/2003/13. 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 . S. Maxime, ‘Blue Helmets, Black Markets’ World Press Review Vol. 40 No. 10 (Oct 1993); T. Findlay, Cambodia: The Legacy and Lessons of UNTAC SIPRI Research Report No. 9 OUP (1995); See the review of K. Cain, H. Postlewait & A. Thomson, Emergency Sex and Other Desperate Measures: A True Story from Hell on Earth Hyperion Press (New York 2004) in UN Wire, ‘New Book Reveals Drug-Filled Parties on UN Missions’, viewed 28 July 2004 at ; General Accounting Office (USA), UN Peacekeeping: Observations on Mandates and Operational Capability Doc. GAO/T-NSIAD-93-15 (9 June 1993) cited in Findlay, Cambodia: The Legacy… p. 139 at note 113;


17

18

19 20

21

22

23

24 25 26

27

W. Brannigin, ‘Bulgarians Tarnish Image of UN Peacekeepers’, Providence Sunday Journal (Oct. 31 1993) Section L; W. Brannigin, ‘Bulgarians Put Crimp on UN Peacekeeping Mission’, Washington Post (30 Oct. 1993); S. McNulty, ‘Blue Helmets, Peacekeeping and a Few Sidelines’, Assoc Press (13 Dec. 1993); both items cited in Findlay, Cambodia: The Legacy… at p. 139 note 112. F.H. Fleitz Jr., Peacekeeping Fiascoes of the 1990s Praeger (Connecticut 2002) pp. 79–80; W. Lubin, ‘Towards the International Responsibility of the United Nations in Human Rights Violations During Peacekeeping Operations: The Case of Somalia’, The Review International Commission of Jurists No. 52 (1994) pp. 47–55. C. Dietrich, ‘The Commercialisation of Military Deployment in Africa’, African Security Review Vol. 9 No. 1 (2000) viewed on 5 June 2006 at . J. Pomfret, ‘Alleged Russian Corruption in Bosnia Worries NATO’, International Herald Tribune (Nov. 7 1995) pp. 1 & 7. Munch, ‘Wrongdoing of International…’ p. 87. Cf. UN force regulations which refer to misconduct within deployed forces. See R.C.R. Siekmann, National Contingents in United Nations PeaceKeeping Forces Martinus Nijhoff (Dordrecht 1991) p. 133. Law enforcement amongst UN forces has always been a highly politicised concept. Institutional tolerance of sexual predation in particular has become a somewhat more common news item. Munch, ‘Wrongdoing of International…’ p. 87. The ‘Office of Internal Oversight Services’ mandate is described in GA. Res. 48/218B (29 July 1994) and viewed on 3 May 2007 at . See the interpretation of this mandate in investigative terms in the Office of Internal Oversight Services/Investigations Division, Manual of Investigation Practices and Policies (4 April 2005) at Part II, esp. paras. 7 & 8. Viewed 2 May 2007 at . On some problems see H. McCoubrey & N.D. White, The Blue Helmets: Legal Regulations of United Nations Military Operations Dartmouth Printing (Brookfield USA 1996) pp. 180–2. See also UN Chronicle Vol. 34 No. 3 (Fall 1997) p. 39. A SoFA resolves the legal issue of primacy where a host state (if it has a government) might otherwise hold concurrent jurisdiction. United Nations, Secretary-General’s Bulletin ST/SGB/1999/13 (6 Aug. 1999) at s. 4. Siekmann, National Contingents in… p. 135. Author conversations with Australians Lt-Gen. John Sanderson on 3 Oct. 2001 & Maj-Gen Michael Smith 29 Jan. 2002. On the Dutch mobile courtsmartial unit deployed in Lebanon, See Siekmann, National Contingents in… p. 140. Siekmann, National Contingents in… p. 135. It is noteworthy that SOFAs outside of the UN arrangement sometimes provide for host jurisdiction where the force member is alleged to have committed a crime unrelated to the discharge of his or her duty. See Siekmann, National Contingents in… p. 139.


30

31

32

33 34

35

36

International Covenant on Civil and Political Rights UNTS No. 14668 Vol. 999 (1976) at 121. International Criminal Tribunal for the Former Yugoslavia (ICTY) Appeals Chamber, Prosecutor v Dusko Tadic a/k/a’Dule’ Oct. 2 1995, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Judicial Reports 1994–1995 ILR 105 (1997) at para. 38. Bowett, United Nations Forces… p.178. Also B. Simma, The Charter of the United Nations. A Commentary 2nd Ed Vol. 1 OUP (Oxford 2002) p. 543. The nature of Art 29 is examined by Simma at pp. 539–63. The court’s charter would identify some forms of criminal conduct suitable for referral to the ICC for investigation, although this would probably be infrequent. On problems see K. Kittichaisaree, International Criminal Law OUP (Oxford 2001) pp. 281–5 at section 10.2. Other issues are likely to include protests by the US on the jurisdiction of the ICC over American citizens; and overlapping jurisdiction between courts. There has been some work done on the possibility of prosecuting UN peacekeepers under the ICC statute. But various political and legal hurdles suggest that this remains unlikely. See M. Du Plessis & S. Pete, Who Guards the Guards? The International Criminal Court and Serious Crimes Committed By Peacekeepers in Africa Institute for Security Studies (Pretoria South Africa 2006) at ‘Executive Summary’, p iii. See also the Rome Statute of the International Criminal Court UN Doc. A/CONF.183/9 (2002). 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. 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 . Some of these are described at Supra chapter 4.7. On some of the issues see B. Oswald, ‘Private Contractors in Australia’, Journal of International Peace Operations (Sept. 2006) viewed on 23 Feb. 2007 at . 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. Eg, the Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, being G.A. Res 43/173, annex G.A.O.R., 43rd Sess., Supp. 49, p. 298, UN Doc A/43/49 (1988); the Basic Principles for the Treatment of Prisoners being G.A. 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 G.A. Res. 217A (III), UN Doc. A/810 at 71 (1948).

A Modest Proposal 213 37

38

39 40

41 42

43

44 45 46 47

48

49

The distinct concept of international responsibility for UN forces is well understood, having arisen with the first peacekeeping mission in 1956. When UNEF soldiers accidentally killed several Egyptians, the UN (rather than the home state of the soldiers concerned) supplied compensation to dependents of the deceased. See F. Seyersted, ‘United Nations Forces – Some Legal Problems’, British Yearbook of International Law Vol. 37 O.U.P. (London 1961) p. 420. There appears to be no reason why company directors and management might prove any more or less upright or delinquent than the troops and officers they employ. A UN example is the Model Status of Force Agreement For Peace-Keeping Operations UNGA 45th Sess. Agenda Item 76 A/45/594 (9 Oct. 1990). In the context of a volunteer force proposal past UN Under-Secretary General Sir Brian Urquhart enthused over how international duty could be an ‘…inspiring new dimension for national military service’. The objectives to be attained through a private employer may be no different. See B. Urquhart, ‘The UN and International Security After the Cold War’, being ch. 3 in A. Roberts & B. Kingsbury (eds), United Nations, Divided World 2nd ed. Clarendon Press (Oxford 1993) p. 94. 1977 Protocol 1 Additional to the Geneva Conventions of 1949 1125 UNTS (1979) 3–608. Convention for the Elimination of Mercenarism in Africa (1977) OAU Doc. CM/817 (39) Annex II Rev. 3 (1977); and the International Convention Against the Recruitment, Use, Financing and Training of Mercenaries 29 ILM (1990) 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. At Art 47(2)(c). Note that Additional Protocol I is in any case concerned with international armed conflicts which form a minority of contemporary struggles. The weaknesses in the normative argument opposing mercenaries are discussed in Supra ch. 3. at Art 1(a). at Arts 1(b) and 2(b). 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 SelfDetermination UN Doc A/60/263 (17 Aug 2005) at para. 46. and note 54. See Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 75 U.N.T.S. 31 (or GC I) at Art 49; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 U.N.T.S. 85 (or GC II) at Art 50; Geneva Convention Relative to the Treatment of Prisoners of War 12 August 1949 75 U.N.T.S. 135 (or GC III ) at Art 129; Geneva Convention Relative to the Protection of Civilian Persons in Time of War 12 August 1949 75 U.N.T.S. 287 (or GC IV) at Art 146; and with a more restrictive ambit, Additional Protocol I Art. 85(2). This term denotes a common habit amongst litigants who seek a tribunal more likely to favour their case; and/or discourage the other side through a court (and process) which is geographically distant, culturally foreign,


50

51 52

53 54 55 56 57

58 59 60 61 62

63 64 65 66

67

68

69 70

employs an unfamiliar language and customs; and/or involves unreasonable time, inconvenience and expense. The International Criminal Tribunal for the former Yugoslavia (ICTY) was established by UN Security Council Resolution 827 (25 May 1993). The International Criminal Tribunal for Rwanda (ICTR) was established by UN Security Resolution 955 (8 Nov. 1994). Eg, A.J. Bellamy, P. Williams & S. Griffin, Understanding Peacekeeping Polity Press (Cambridge 2004) at p. 272. D. Bratt, ‘Assessing the Success of UN Peacekeeping Operations’, in M. Pugh (ed.), International Peacekeeping Vol. 3 No. 4 Frank Cass (London Winter 1996) at p. 64 notes 1 & 4. Bratt, Assessing the Success of… p. 71. Bratt, Assessing the Success of… p. 73. Bratt, Assessing the Success of… p. 75. Bratt, Assessing the Success of… p. 76. The complete success list included UNSF, DOMREP, UNEF II, UNAVEM I, UNTAG, ONUCA, ONUSAL, ONUMOZ, UNMIH II, UNASOG and UNPREDEP. See p. 79. P.F. Diehl, International Peacekeeping Johns Hopkins Press (Baltimore 1993) p. 34. Diehl, International Peacekeeping… p. 37. Diehl, International Peacekeeping… pp. 60–1; 167–9. Diehl, International Peacekeeping… pp. 60–1; 175–7. UNTSO, UNEF 1, ONUC, UNFICYP, UNEF II, UNDOF and UNIFIL. See M.A. Browne, United Nations Peacekeeping: Historical Overview and Current Issues CRS Report for Congress Library of Congress (Wash DC 31 Jan. 1990). That is, ONUC and UNEF II. Ibid p. 20. R.C. Johansen, ‘UN Peacekeeping: How Should We Measure Success?’ Mershon International Studies Review Vol. 38 (1994) pp. 307–10. D. Bratt, ‘Defining Peacekeeping Success: the Experience of UNTAC’, Peacekeeping & International Relations Vol. 25 No. 4 (July–Aug. 1996) pp. 3–6. Browne chose a violence reduction assessment which ends in an unhelpfully imprecise conclusion. Each of the 7 ops. apparently delivered ‘…some amount of success in so far as its presence has contributed, to a larger or smaller extent, to a reduction in, or an end to, violence in the area of operations’. Browne, United Nations Peacekeeping: Historical… p. 21. For this reason the recently created ‘UN Peacebuilding Commission’ seems likely to be of uncertain benefit. UN Peacebuilding Commission site viewed on 1 June 2006 at . For a commentary on these see F.O. Hampson, Nurturing Peace: Why Peace Settlements Succeed or Fail UN Institute of Peace Press (Wash. DC 1996) at Ch. 7. See. See A. Goodman, Democracy Now! (12 Jan. 2007) viewed on 22 May 2008 at .

A Modest Proposal 215 71

72 73

74

75 76 77

78

79

80

81 82

83

84 85

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 Jan. 2007 at . Economist, ‘And Now, the War Forecast’ (15 Sept. 2005) p. 1 viewed on 25 Sept. 2005 at . A ‘Lessons Learned’ unit was created within the Department of Peacekeeping Operations (DPKO) in April 1995 in order 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. K. Annan, In Larger Freedom: Towards Development, Security and Human Rights for All United Nations (2005) viewed on 11 May 2005 on PDF at . See Executive Summary p. 5 & Section VI (k). He also suggested that the ‘enemy’ clauses and Military Staff Committee should be removed. W. Bain, Between Anarchy and Society: Trusteeship and the Obligations of Power O.U.P. (Oxford 2003) p. 25. See Bain, Between Anarchy and…pp. 121–39. For some helpful background on the issues see P. Lyon, ‘The Rise and Fall and Possible Revival of International Trusteeship’, Journal of Commonwealth & Comparative Politics Vol. XXI No. 1 (March 1993). Declaration on the Granting of Independence to Colonial Countries and Peoples GA. Res. 1514 (XV) of 14 Dec. 1960, esp. operative paras. 3 & 5. Viewed on 12 May 2005 at . Also see the International Covenant on Civil and Political Rights at Art. 1, UN Doc A/6316 (1966) 999 UNTS 171. The Programme of Action for the Full Implementation on the Declaration of the Granting of Independence to Colonial Countries and Peoples GA. Res. 2621 (XXV) (1970) identified colonialism as a crime and acknowledged the legitimacy in armed struggle to defeat it. See The Importance of the Universal Realization of the Right of Peoples to Self Determination and the Speedy Granting of Independence to Colonial Countries and Peoples for the Effective Guarantee and Observance of Human Rights GA. Res. 33/34 (23 Nov 1979). G.B. Helman & S.R. Ratner, ‘Saving Failed States’, Foreign Policy No. 89 (Winter 1992–3) p. 4. J.L. Payne, ‘Does Nation Building Work?’, The Independent Review Vol. X No. 4 (Spring 2006) pp. 599–610. Note the 50 per cent success rate in nation-building since the 1950s suggested in M.E. O’Hanlon, ‘Nation Building: Not for the Fainthearted’, Newsweek International (5 June 2006) viewed on 14 June 2006 at . B. Boutros-Ghali, An Agenda For Peace, Preventive Diplomacy, Peacemaking and Peacekeeping Report of the Secretary-General Pursuant to the Statement Adopted by the Summit Meeting of the Security Council on 31 January 1992, UN Doc. A/47/277-S/24111 (17 June 1992) at para. 17. Boutros-Ghali, An Agenda for Peace… para. 17. Bain, Between Anarchy and… at Introduction.


89

90

91

92 93

94

95 96 97 98 99

This is part of the rationale supporting continued US involvement in Afghanistan. A.A. Mazrui, ‘Decaying Parts of Africa Need Benign Colonization’, The International Herald Tribune (4 Aug. 1994) p. 6. The Responsibility to Protect Report of the International Commission on Intervention and State Sovereignty (Ottawa Dec. 2001.) See paras. 4.35–4.36; 6.31. On bases for intervention see paras. 4.13–4.43. The Responsibility…was unanimously endorsed by the UN World Summit in September 2005 and reaffirmed by the UN Security Council on 28 April 2006. They buttress this with an assertive view of the significance of treaty law and state practice at para. 6.17. There is a growing literature on this topic. See M. Halberstam, ‘The Legality of Humanitarian Intervention’, Cardozo Journal of International and Comparative Law Vol. 23 No. 1 (1995); D.J. Scheffer, ‘Towards a Modern Doctrine of Humanitarian Intervention’, University of Toledo Law Review Vol. 23 No. 2 (Winter 1992); N. Wheeler, ‘Legitimating Humanitarian Intervention: Principles and Procedures’, Melbourne Journal of International Law Vol. 2 No. 2 (Oct. 2001). See United Nations Security Force in West New Guinea (UNSF) site viewed on 31 May 2005. The UNAMIC preparatory mission is described at and successor UNTAC mission at . UNTAC held roles in elections, military organization, civil administration, repatriation and the resettlement of refugees. Both sites viewed 31 May 2005. S. Chesterman, You, The People: The United Nations, Transitional Administration and State Building O.U.P. (Oxford 2004). See ch. 4 at pp. 126–53. Chesterman explores examples where the UN or its Representatives assumed degrees of governmental authority during administrations in Bosnia, Eastern Slavonia, Kosovo and East Timor. See Chesterman, You, The… p. 152. E. Messner & J.J. Messner, ‘A Lesson in How Not to Leave’, Washington Post (10 June 2006) viewed on 10 June 2006 at . On a related point Oxford economist Paul Collier is probably correct to argue that billions of dollars in aid to Africa will be wasted without the addition of skilled troops deployed by the wealthier states. See H. Stewart, ‘West Must Police Africa’s Wars’, The Observer (26 Nov. 2006) viewed on 26 Nov. 2006 at . See the now excised Charter Arts. 77 & 78. See Lyon, ‘The Rise and Fall and…’ p. 108. Also The Responsibility to Protect at para. 4.33. See the Foreign Policy ‘Failed States Project’ (2005) viewed on 27 Oct. 2006 at . Bain, Between Anarchy and… p. 163. US Congressman David Price sponsored the MEJA Expansion and Enforcement Act of 2007 (HR 2740) to amend the Military Extraterritorial Jurisdiction Act for similar purposes in part. Changes would require sending FBI teams to investigate contractor crimes in war zones.

A Modest Proposal 217 100 101 102

103

104

105

Art. 18(2). See Supra ch. 1. See the UN Secretary-General’s Bulletin on Observance by UN Forces of International Humanitarian Law ST/SGB/1999/13 (6 Aug. 1999); also C. Greenwood, ‘International Humanitarian Law and United Nations Military Operations’, Yearbook of Int’l Humanitarian Law Vol. 1 (1998) at pp. 3–34; and A. Roberts & R. Guelff, Documents on the Laws of War 3rd ed. OUP (Oxford 2000) p. 26 and note 62. The leading example has been United States’ rejection of the International Criminal Court. Interestingly, the recent Bush Administration showed tolerance and even approval of the ICC where trials concerned other nations’ citizens. Reparations for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep. 174, 182. And action taken by the UN in pursuit of the purposes of the Organisation such as the maintenance of international peace and security was not beyond its powers. See Certain Expenses of the United Nations (Advisory Opinion) [1962] ICJ Rep. 151. See K. Kittichaisaree, International Criminal… pp. 22–7.

7 Conclusion

7.1

Introduction

Will UN members choose to fund and equip an adjunct force for the purpose of more frequently securing more successful operations? If the past is a guide to future conduct, it would seem that a human rights crisis is a necessary but insufficient condition for the Security Council to consider authorising a corporate deployment. With this in mind the second section reprises remarks on the humanitarian crisis in Darfur canvassed in the Introduction and the now familiar Blackwater proposal. That plan was implausible for reasons evident at the time and much plainer now. More importantly, constraints on Blackwater reflect persistently unaddressed hindrances that limit greater industry integration in UN operations more generally. These impediments may be daunting. Yet they are neither inevitable nor permanent – much like the present organisation of legitimised violence. The third section describes the nature of diplomacy from which a fitting solution might address the ambitions of all stakeholders. Adroit diplomacy could considerably improve those mixed relations that presently exist between the UN, PMSCs and some NGOs. Participation in a new ‘Framework of Engagement’ could directly address the interests of each party through beneficial confidence building. The fourth and final section delivers a comment on earlier chapters and an observation on the frequently misunderstood nature of the link between business/state relations and the organisation of legitimised violence.

7.2

A reprise: the Blackwater ploy and a wider problem

The damnation of Sisyphus is an ancient myth. The story concerns a hapless Greek condemned by the Gods to spend eternity repeatedly 218

Conclusion 219

pushing a rock up a hill until it inevitably rolled back under its weight and his worsening fatigue. The tale seems analogous to a more corporeal futility familiar to diplomats at the UN and the Security Council in particular. Here, unwelcome spectres from past operations tend to recrudesce with repeated and unwelcome familiarity. Take one of the crises of 2006. Three years ago, then US Secretary of State Colin Powell described Darfur’s circumstance as ‘genocide’.1 In hindsight he appears to have overstated the case. Nevertheless, as violence spilled into neighbouring Chad, Democratic Party officials in America demanded the deployment of US forces to end what they considered genocide in Western Sudan.2 Perhaps both statements were unexceptional examples of that hyperbole common to politicians and their trade. Talk of genocide probably did little to reassure journalists on the other side of the Atlantic, some of whom complained that protracted war crimes trials in the Hague were no substitute for humanitarian intervention in violent places.3 ‘Human Rights Watch’, ‘Amnesty International’ and the ‘International Crisis Group’ each urged the Security Council to meet the UN’s self-proclaimed ‘responsibility to protect’ in Darfur.4 The then Secretary-General responded by calling for a UN deployment to double the 7000 African Union troops stationed there to very limited effect.5 NATO reacted by declining to send ground forces6 and it was difficult to see which states would volunteer professional units of any size. More generally, Mr Annan struggled with a continuing dilemma of rising deployment obligations and a diminishing troop supply.7 Around the same time the American ‘Special Adviser to the SecretaryGeneral on Genocide’ identified the growing likelihood of a wider human rights calamity of enormous proportions. Perils escalated in the Ivory Coast, the DRC and northern Uganda.8 Within disheartening constraints, the most innovative plan the DPKO chief considered feasible was the dedication of a group of 2500 civilians to peacekeeping duties.9 Months passed and the UN ‘Working Group on Mercenaries’ struggled to produce proposals of value; other than the unremarkable notion that they would consider meeting with PMSC representatives.10 While these matters simmered the Secretary-General was repeatedly distracted. Mr Annan’s tenure may have been in its twilight but he was still obliged to step cautiously over darkening embers scattered by smouldering scandals: the oil-for-food program, peacekeeper sexual abuse, corrupt awarding of UN contracts11 and cover-up claims over the June 2006 East Timor massacre.12 He was further distracted by a staff revolt. Job outsourcing and privatisation plans promoted by


the US and backed by the West were opposed by both civilian employees and the Group of 77 developing states.13 A frustrated Mr Annan in March 2006 observed with some understatement that he was expected to be the world’s chief diplomat and at the same time to ‘…run a large and complex organisation, as it were, in my spare time’.14 Closely observing these events was an increasingly potent private military and security industry. Sensing a propitious moment in which to elevate their media prominence, representatives had emphasised a few months earlier how the presence of African Union troops in the Sudan had been preceded by the arrival of private companies. Contractors set up the troops’ bases, supplied logistics and maintained their medical support.15 Soon after, management at ‘Blackwater USA’ judged the time ripe to tout a very different capability. Executives from the company proposed the dispatch of an armed force to address some of the turmoil in Darfur at brigade strength.16 A new iteration of the private military company was envisaged on a larger scale than its recent predecessors. Although company spokesmen did not seem entirely clear as to the nature of the Security Council’s role, Blackwater was apparently ready to enter the fray in the service of humanitarian goals. When this alternative was put to the Under Secretary-General for Peacekeeping, Mr Guehenno demurred politely with a remark about state responsibility.17 Superficially, this seemed an incongruous observation, as acting on that responsibility was exactly what was lacking in Sudanese government intentions. Some on the American right responded by energetically castigating what they saw as hypocrisy.18 They had a point of sorts. It was plain that thousands of lives would be lost as the Sudanese government and its allies pursued their frequently violent intentions.19 Promoters of the intervention scheme declared that Darfur presented a profit-driven chance to deploy an effective unit. Here, they suggested, was a case where the international market in military labour could be adapted to meet UN objectives. A Blackwater deployment would certainly have been formidable by comparison with the ill-prepared and inadequately equipped UN force. In 2006 the ‘African Union Mission in Sudan’ (AMIS) lacked adequate vehicles, a proper intelligence capability, aerial reconnaissance and satisfactory communications.20 It could not even pay deployed personnel, prompting the Ghanaians to leave while the South Africans took industrial action.21 Blackwater, supporters argued, would field disciplined troops and demonstrate vastly superior capabilities. Followers maintained that this was an opportunity for a PMC to achieve superior results.22 But was this really so?

Conclusion 221

Two obstacles were manifestly insurmountable. UN Assistant Secretary-General for Peacekeeping and ex-US army officer Dr Jane Holl Lute identified the first. She opined that Blackwater could not yet supply the ‘command and control, political oversight, accountability and responsiveness’ she considered necessary for UN operations.23 She was correct. No matter how competent and well organised, the Blackwater proposal could not overcome those hurdles in authority to act and accountability in conduct addressed in the previous chapter. Whoever they may be, aspiring UN agents will not succeed without attracting the necessary confidence in institutions required to govern those agents. These institutions would first have to be created in good faith, then administered according to reassuring standards which supply effective, fair and reliable governance at reasonable cost. The second problem is that the Sudanese government would not have tolerated the incursion. The Blackwater emphasis on corporate efficiency or satisfactory price obscured intractable issues which industry critic Peter Singer has summarised: an ineffective UN mandate; insufficiently robust international resolve; and an obstructionist government in Khartoum which made it plain that non-consensual emplacement would have required resources far beyond those of any individual corporation.24 To this author’s mind there does not seem to have been any chance that Blackwater would have secured UNSC authorisation. Even in the highly improbable event that four of the Permanent Five members on the Security Council had agreed (along with four of the rotating members) the Chinese government would almost certainly have stopped any move to intervene. Beijing has considerable strategic investments in the Sudanese oil business, something uncomplicated by unease over human rights abuses conducted by its host. In truth, all parties knew this, including Blackwater management. It is hardly surprising that in 2006 the Aegis CEO remarked with some insight that he suspected Mr Black was making a point that was not literal.25 Although the company’s proposal was not serious, the incident was a calculated and public demonstration of rapidly growing political and commercial influence. A genuine proposal for a future deployment is likely to emerge from a more conventional form of negotiation.

7.3

The sense in diplomacy

Collective diplomacy is one means of locating common interests held by PMSCs, the UN and some NGOs. Confidence-building measures could take the form of exchanges regarding mutually desirable ends, the means required to carry them out and the funding necessary to pay


for them. Such efforts may seem unlikely in the absence of a particular crisis. But an industry keen to secure new markets and enhanced legitimacy is likely to react positively to the idea.26 States are likely to be more circumspect. Their governments would probably show interest in two circumstances: if invigorated pursuit of enhanced peacekeeping and other operations seems likely to secure new or greater benefits than are presently delivered to these governments by the status quo; or if proposals for a corporate adjunct are likely to supply fewer or reduced risks (ideally at a modest cost) compared with those risks they currently bear. One might refer to this association of industry/ UN/NGO negotiators as the ‘Engagement Group’. In one sense the UN already provides encouragement to cultivate better relations. Contractors today assist the UN in pursuits ranging from airports to agriculture and fisheries to forestry; from pipelines to ports and telecommunications to tourism.27 Literally hundreds of firms are registered with the UN28 and the Department of Peacekeeping Operations is an eager consumer of their services. For example, in 2006 millions of dollars worth of aviation support was supplied to the MONUC mission in the DRC. Fixed and rotary wing services provided half a dozen types of helicopters and jets of military and civilian origin.29 MONUC also budgeted for slightly fewer than 700 guards, including funds to pay for their weapons and ammunition.30 Nor have there been qualms over outsourcing where UN or regional forces acting under Security Council authority have lacked a necessary endogenous capacity. The Americans in particular have assisted several times. Commercially sourced US police served in the ‘International Police Task Force’ in Bosnia and Herzegovina;31 while 150 American weapons inspectors, verifiers and observers were emplaced by DynCorp in the OSCE ‘Kosovo Verification Mission’.32 And US firm MPRI sent 45 border monitors to Serbia in order to prevent arms smuggling to Bosnian Serbs in Bosnia-Herzegovina.33 De-mining is another sizeable operation which is regularly outsourced to industry.34 More sensitive skills have also been sought in asset tracing,35 imaging and intelligence.36 An Engagement Group could begin in these areas, expanding existing opportunities while identifying particular DPKO and DFS weaknesses PMSCs could address. The Group would hold only one wholly fixed aspect, in that it could not assemble and deliberate in competitive antipathy with the existing Working Group on the Use of Mercenaries.37 Good faith relations between the UN, NGOs, states and industry would be easier to sustain if sufficient incentives and pressures brought about an end to the Mer-

Conclusion 223

cenaries Working Group. That body would otherwise remain a platform for the espousal of anti-industry views and hostile ideology.38 It is quite appropriate to air such opinions. But the UN is unlikely to see progress in relations with PMSCs while tolerating two entities holding incompatible purposes. Residual suspicion could be dampened by avoiding either burdensome objectives or goals so insubstantial as to provoke pessimism or contempt from either side. Engagement Group representatives would also be wise to avoid couching benefits solely in terms of superior goods and services provided for the welfare of desperate recipients. The shrewder path would be to promote these benefits in terms of advantage to UN members. In other words, providing benefits to strangers should be translated into terms sponsors genuinely value: raised diplomatic kudos and inflated stature in interstate forums; enhanced standing with mixed domestic constituencies; and consolidated prestige for executive governments when mandate goals are met. Any transformation would require favourable US views.39 Within the UN the Americans exercise formidable financial authority coupled with an earnest pre-occupation with their ‘long war’. US national security policy has evolved greatly in light of recent mistakes; to the point where acceptance of a growing sophistication in counter-insurgency campaigns suggests an understanding of the value that complex interventions hold in promoting American security.40 For this reason, the Obama Administration may be persuaded that US interests are served through support for enhanced UN peacekeeping operations which may extend to armed intervention and state stabilisation. American support seems plausible where US responsibilities are manageable. In this event Washington seems likely to encourage these deployments. Re-kindling pro-UN policy in America coupled with the emergence of enlightened self-interest by other states would bolster the case for an experiment in adjunct forces.

7.4

Summary: perception and misperception

The first chapter began with the sub-heading ‘An Intractable Problem’, a title prompted by the panoply of difficulties evident in UN peacekeeping today. Ad hoc forces have not delivered the promise they once seemed to hold. And conventional alternatives have never been sufficiently acceptable to states’ governments. This has been the case regardless of various permutations arising from the three variations identified in the second chapter, along with a wave of other proposals.


The third chapter canvassed widely misperceived aspects of mercenarism, organised violence and legitimacy. The taxonomy was intended to add clarity to contemporary firms’ roles; and the advocate’s case asserted a view conspicuously at odds with accepted wisdom in UN circles. The fourth and fifth chapters investigated some of the tensions which ebb and flow between states and non-state actors in the organisation of violence. Some of these tensions take the form of risks common to any business. Others are peculiar to the commerce of war. A third category attaches to the United Nations Organisation, its Charter and a membership characterised by diverse and competing agendas. Heedful Security Council members might ponder these risks at length. One should in particular remain aware that PMSCs may remain instruments of individual state power projection, whether this be overt or covert; and whether for publicly defensible goals or more squalid purposes. These are some of the influences which provide the impetus for the new model in the sixth chapter. Through this UN creation, the Security Council might form agency agreements and conduct business with contract companies while acting within Charter powers. To repeat a remark from the Introduction, this scheme builds on the UN strength in multilateral legitimacy and avoids the inherent UN weakness in ad hoc recruitment. For the author, this research has frequently been an education in the durability of erroneous perceptions and the equally robust purposes their longevity serves. States’ governments commonly misinterpret PMSC purposes and some view the growing influence of the industry as an affront to sovereignty. This is misleading. To coin a second phrase from earlier in the text, armed conflicts amongst and within states have never involved a firm division between private and public resources. This truth stretches from ancient Greece to Iraq today. Nor is there a compelling reason why Charter purposes should not be furthered by sourcing UN needs from an international military market offering a widening range of labour, goods and services. There is no insuperable reason why modern contractual relations could not evolve from historically ubiquitous arrangements amongst UN members and their more ancient predecessors. For UN members to adopt these measures implies an acceptance of dissenting ideas. This would seem desirable if there is to be more than sluggish progress in achieving Charter objectives concerning the maintenance of international peace and security. A corporate agent will never be a panacea for the entirety of that human misery laid at the door of the Security Council. Never-

Conclusion 225

theless, the deployment of disciplined, professional contractors under rigorous conditions may offer improvements on those currently mixed standards of peacekeeping that prevail today. International humanitarian intervention would also become a less remote aspiration in terms of the means by which unconventional legal doctrines might be given practical form. Both would enable the Security Council to better address its Charter responsibilities and in particular the Preamble and its admonition on war. Notes 1 J. Gledhill, ‘Darfur and Beyond: We Need Permanent Peacekeeping Forces’, International Herald Tribune (18 May 2006) viewed on 19 May 2006 at . 2 E. Mbachu, ‘Democratic Leader Calls for a Stop to ‘Human Carnage’ in Darfur’, allAfrica.com (20 March 2006) viewed on 21 March 2006 at . 3 M. Hastings, ‘It is Better to Halt Mass Murder Than Clean it up Afterwards’, The Guardian (13 March 2006) p. 32. 4 Human Rights Watch, ‘UN: Darfur Needs Robust Protection Force’, press release (25 May 2006) viewed on 26 May 2006 on . 5 B. Jones, ‘The Limits of Peacekeeping’, latimes.com (1 March 2006) viewed on 1 March 2006 at . 6 Reuters, ‘NATO Studies Darfur Options, Excludes Ground Force’ (10 April 2006) viewed on 11 April 2006 at . 7 R. Norton-Taylor, ‘Peacekeeping Forces Face Deployment Crisis’, The Guardian (28 Feb. 2006) viewed on 28 Feb. 2006 at . Economist, ‘The Strains Tell on UN Peacekeeping. Too Few Forces, Too Little Oversight’ (4 March 2006) viewed on 7 March 2006 at . 8 L. Schlien, ‘UN Expert Says Action Needed to Prevent a Genocide in Several African Countries’, VOA News (27 Jan. 2006) viewed on 28 Jan. 2006 on . 9 UN News Centre, ‘Top UN Peacekeeping Official Calls for Professional Corps for Field Operations’ <www.un.org> (27 Feb. 2006) viewed on 28 Feb. 2006 at ; The Age, ‘UN Chief Calls for Rapid Response Force’ (9 March 2006) viewed on 9 March 2006 at . 10 Report of the Working Group on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of People to SelfDetermination UN Commission on Human Rights Doc. E/CN.4/2006/11 Advance Edited Version (23 Dec. 2005) at paras 27 & 37; See also S. Shameem, ‘Mercenary Activities in Focus’, Asia Pacific Focus ‘Viewpoint’, Australian Broadcasting Corporation (Feb. 24 2006) viewed on 1 March 2006 at . 11 J.A. Moor Jr., & J. Pubantz, The New United Nations. International Organization in the Twenty-First Century Pearson/Prentice Hall (New Jersey 2006) pp. 112–13.

226 Privatising Peace 12 AAP, ‘Cover-Up Claims After UN Order’ <www.smh.com.au> (4 June 2006). 13 E.M. Lederer, ‘UN Union: “No Confidence” in Annan’, Associated Press (9 March 2006) viewed on 10 March 2006 on ; J. Lauria, ‘SA May Seek to Kill Annan’s UN Reforms’, Pretoria News (9 March 2006) viewed 9 March 2006 at . On the Group of 77 see S. Morphett, ‘States Groups at the United Nations and the Growth of Member States at the United Nations’, being ch. 8 in P. Taylor & A.J.R. Groom, The United Nations at the Millennium Continuum (London 2000) pp. 242–3. 14 The Age, ‘UN Chief Calls for…’ 15 D. Pugliese, ‘Soldiers of Fortune’, The Ottawa Citizen (16 Nov. 2005) viewed on 18 Nov. 2005 at . 16 B. Sizemore, ‘Blackwater USA Says it can Supply Forces for Conflicts’, Norfolk Virginian-Pilot (30 March 2006) viewed 1 April 2006 on . See also N. Hodge, ‘Blackwater CEO Touts A Private Peacekeeping Model’, Conflict News (23 Feb. 2005) viewed on on 8 March 2005 via ; R. Weiner, ‘Peace Corp’, The Boston Globe (23 April 2006) viewed at <www.boston.com> on 26 April 2006; S. Weinberger, ‘Facing Backlash, Blackwater has a New Business Pitch: Peacekeeping’, Wired 18 Dec. 2007 at viewed on 10 Jan. 2009. 17 F. Langfitt, ‘Private Military Firm Pitches its Services in Darfur’ <www.npr. org> (26 May 2006) viewed on 27 May 2006 at . 18 M. Boot, ‘Send in the Mercenaries’, Los Angeles Times (31 May 2006) viewed on 31 May 2006 at . 19 UN News Centre, ‘Annan Issues Stark Message to Security Council About Impending Catastrophe in Darfur’ (11 Sept. 2006) viewed on 13 Sept. 2006 at . 20 For the African Union Statement of Mission for AMIS see the ‘United Nations Mission in Sudan’, website viewed on 14 Sept. 2006 at . For criticism of mission capability see D. Donald, After the Bubble: British Private Security Companies After Iraq RUSI/Whitehall Paper No. 66 at p. 56. 21 V. Ka Nzapheza, ‘South African Police on Darfur Mission Embark on Sit-in Over Payment’ <www.iol.co.za> (20 Nov. 2006) viewed on 23 Nov. 2006 at . 22 The Americans are not alone. A somewhat similar plan at reasonable cost has been suggested by the British officer Colonel Tim Collins. See T. Collins, ‘It’s Time for a New International Brigade’, The First Post (5 Jan. 2007) viewed on 5 Jan. 2007 at . Also the remarks of Mr. George Simms of HART Security quoted in R.Y. Pelton, Licensed to Kill Crown Pub (New York 2006) p. 298. 23 See Uni of Texas/LBJ School of Public Affairs webcast 24 Jan. 2007 at viewed on 2 Feb. 2007. 24 P. Singer e-mail to J. Scahill (day undated) Dec. 2006 in J. Scahill, Blackwater: The Rise of the World’s Most Powerful Mercenary Army Nation Books/ Avalon (New York 2007) p. 348. 25 Interview with Aegis CEO Lt.-Col. T. Spicer, London 24 Aug. 2006. 26 Eg, D. Brooks, ‘Focusing on Sudan’ (Editorial) Journal of International Peace Operations Vol. 2 No. 1 (July–Aug. 2006) at p. 4.

Conclusion 227 27 United Nations Development Business, ‘About UN Development Business’, viewed on 6 Sept. 2006 at . 28 Ibid. 29 United Nations Procurement Service, United Nations Mission in the Democratic Republic of Congo viewed on 6 Sept. 2006 at 30 Ibid. 31 A decision of the UNSC established the U.N. International Police Task Force (IPTF) to carry out a program of assistance in Bosnia and Herzegovina as a UNCIVPOL operation. DynCorp was the US firm concerned. See Dept. of State, Dayton Peace Agreement Documents viewed on 13 Sept. 2006 at . 32 The Kosovo Verification Mission was deployed by the OSCE Permanent Council pursuant to a UNSC Resolution in 1998. See viewed on 13 Sept 2006. Again DynCorp was responsible. 33 O. Bures, ‘Private Military Companies: A Second Best Peacekeeping Option?’, International Peacekeeping Vol. 12 No. 4 (Winter 2005) p. 537. 34 P. Singer, Corporate Warriors Cornell Uni Press (Ithaca & London 2003) p. 82. 35 This concerned the assets of the late Jonas Savimbi, leader of UNITA in Angola. See C. Lynch, ‘Private Firms Aid UN On Sanctions’, Washington Post (21 April 2001) viewed on 5 June 2006 at . 36 UNSCOM hired this capacity. Ibid. 37 For some remarks on this body see Supra ch. 3.5. 38 The Spanish delegate Jose Luis Gomez del Prado apparently has no doubt that armed security contractors in Iraq are ‘mercenaries.’ His Colombian colleague Amada Guevara recently announced that recruitment of South Americans for Iraq ‘amounts to the privatization of warfare.’ See P. Baz, ‘Mercenaries are Second Largest Force in Iraq: UN Official’, AFP News Brief (3 Feb. 2007) viewed on 3 Feb. 2007 at . 39 Major changes of this nature are not improbable. See S.V. Scott, ‘Is There Room for International Law in Realpolitik? Accounting for the US “Attitude” Towards International Law’, Review of International Studies Vol. 30 (2004) pp. 71–88 at p. 83. And despite its sometimes hostile rhetoric the US retains responsibility for approximately 27 per cent of the peacekeeping budget. 40 For example, see the National Security Strategy of the United States of America (March 2006) viewed on PDF file on 13 Sept. 2006 at at p. 16.

Appendices Appendix I

Proposed Contractor Peacekeeping and Intervention Model Security Council

Mandate

Governance (Quasi-state responsibilities)

UN Directorate for Military Contracting (Applying a new UN Military Law)

DPKO & DFS role: sovereign forces assembly, preparation & liaison with contractor support

UN Military Police, Forensic Investigation & Legal Team

UN Mobile Criminal Court

Secretary-General

UN Industrial Tribunal International Criminal Tribunals

UN Penitentiary, Involuntary Detention & Rehabilitation Unit

Business consultants: - third party evaluation - prognostic support

Operations (All Chapter VII)

UN Contractors civilian police de-mining logistic support medical support engineering support intelligence & situation analyses command, control & comms transport – sea/air/land admin, planning & finance volunteer troops, both combat & peacekeeping: Infantry, armour artillery & air support recruitment & training civilian advisers

Appendix II

UNDPKO Organisational Chart 2007 Department of Peacekeeping Operations As of 1 July 2007

Office of the Under-SecretaryGeneral

Executive Office

Office of Operations

Office of Military Affairs

Office of Rule of Law and Security Institutions

Situation Centre

Policy, Evaluation and Training Division

Police Division

Africa I Division Current Military Operations Africa II Division

Peacekeeping Best Practices Criminal Law and Judicial Advisory Section

Military Planning Service Europe and Latin America Division

Integrated Training Service

DDR Section Force Generation Service

Asia and Middle East Division

229

Mine Action Service

DFS Organisational Chart 2007

230

Appendix III

Department of Field Support As of 1 July 2007

Office of the UnderSecretary-General

Executive Office

Office of the ASG

Field Personnel Division

Field Personnel Operations Service

Field Personnel Specialist Support Service

Field Budget and Finance Division

Budget and Performance Reporting Service

MOU and Claims Management Section

Logistics Support Division

Operational Support Service Specialist Support Service

Transportation and Movement Service

Conduct and Discipline Unit

Senior Leadership Appointments Section

Communication and Information Technology Service

Operations Section

Information Systems Section

Glossary Ad hoc

Status quo Uti possidetis

‘For this purpose.’ In the context of United Nations operations the expression refers to troops, civilians and materiel deployed for the specific purpose of discharging a particular mission mandate. The existing condition or state of affairs. ‘As you possess.’ An international legal principle applied to the borders of states. As European colonial empires contracted, the boundaries of newly independent states largely remained as they were under colonial rule.

231

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Primary Sources 1. Interviewees listed alphabetically Anonymous, Legislative assistant to a Democratic Representative of the United States Congress. Rayburn Building, US Congress Wash. DC 19 April 2006 Anonymous, Senior official, United Kingdom Foreign and Commonwealth Office Whitehall London 30 Nov. 2006 Anonymous, Official, United Kingdom Ministry of Defence Whitehall London 5 Dec. 2006 Avant, Deborah, Professor, George Washington University 18 April 2006. Beese, Christopher, MBE, Chief Administrative Officer and Director, ArmorGroup International plc. London office 26 Sept. 2006. Brooks, Doug., President, International Peace Operations Association. IPOA offices Wash. DC 18 April 2006 Cosgrove, Peter J., Lieutenant-General AC MC, Commander International Force East Timor 1999–2000. Interview government offices Canberra 29 Jan. 2002 Dwan, Dr Renata, Co-ordination Officer, Peacekeeping Best Practices Unit, Department of Peacekeeping Operations, United Nations. New York City 25 April 2006 Flynn, John G., British Ambassador to Angola and non-resident to Sao Tome and Principe, 1990–93; British Special Representative to Sierra Leone, 1998. Interview London 20 March 2007 Hawley, Alan, Major-General. Director-General of Army Medical Services (UK) University of Cambridge 9 November 2006 Powell, Roger A., Major-General AM. Deputy Commander UN Transitional Authority East Timor 2001/Commander, Peace Monitoring Group Bougainville Multinational Peacekeeping Force 1998–9. Government offices Canberra, 29 Jan. 2002 Sanderson, John, Lieutenant-General. Military Commander UN Transitional Authority Cambodia 1992–3. Telephone interview 3 Oct. 2001 Schultz, Sabrina, Dr. Policy Director, British Association of Private Security Companies. BAPSC London office 1 Aug. 2006 Singer, Dr Peter, Interview Brookings Institution Wash. DC 18 April 2006. Smith Michael G., Major-General AO, Deputy Commander UN Transitional Authority East Timor 2000–1. Government offices Canberra, 29 Jan. 2002 Spicer, Timothy, Lieutenant-Colonel OBE (retd.) Chief Executive Officer, Aegis. Interview Aegis London office 24 Aug. 2006 Wing, Ian, Lieut-Col, Director Land Warfare Studies Centre Canberra 2001. Telephone interview 7 Nov. 2001 Urquhart, Sir Brian, United Nations Under-Secretary-General 1972–1986. New York City, 23 March 2006 232

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2. Public Lectures, Industry Conferences, Debates and Briefings Anderton, S., Address, RUSI-BAPSC First Annual Conference, London 30–31 October 2006 Bearpark, A., Address, Private Military Companies Operating in Situations of Armed Conflict, 7th Bruges Colloquium 19 Oct. 2006 Evans, G., Lecture, ‘The Responsibility to Protect’, Seymour Centre, University of Sydney 24 Oct. 2008 Rosen, N., Address and debate, 3 April 2008, Center on Law and Security/NYU School of Law Seminar ‘Privatizing Defense: Blackwater, Contractors and American Security’

3. Documents (a) Treaties Convention for the Elimination of Mercenarism in Africa (1977) OAU Doc. CM/817 (39) Annex II Rev. 3 (1977) Convention on the Safety of United Nations and Associated Personnel (1995) 34 ILM 482 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 75 U.N.T.S. 31 Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 U.N.T.S. 85 Geneva Convention Relative to the Treatment of Prisoners of War 12 August 1949 75 U.N.T.S. 135 Geneva Convention Relative to the Protection of Civilian Persons in Time of War 12 August 1949 75 U.N.T.S. 287 1899 Hague Convention (IV, 3) Concerning Expanding Bullets UKTS 32 (1907), Cd. 3751 International Convention Against the Recruitment, Use, Financing and Training of Mercenaries 29 ILM (1990) 89–97 International Covenant on Civil and Political Rights UN Doc A/6316 (1966) 999 UNTS 171 Kathmandu Agreement National Archive: India Office and Foreign Office/ Embassy, Kathmandu Nepal/General Correspondence FO 766/26 1947 Montevideo Convention on Rights and Duties of States 1933 (1934) 165 LNTS 19 1977 Protocol 1 Additional to the Geneva Conventions of 1949 1125 UNTS (1979) 3–608 Rome Statute of the International Criminal Court UN Doc. A/CONF.183/9 (2002) Treaty with the Rajah of Nepaul – Segowley, 1815, 4 BFSP p. 255 United Nations Charter 59 Stat. 1031, TS 933, 3 Bevans 1153

(b) United Nations Documents (i) Selected General Assembly Resolutions Basic Principles for the Treatment of Prisoners being G.A. Res. 45/11, annex, G.A.O.R., 45th Sess, Supp. 49A, p. 200, UN Doc. A/45/49 (1990) Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, being G.A. Res 43/173, annex G.A.O.R., 43rd Sess., Supp. 49, p. 298, UN Doc A/43/49 (1988)

234 Bibliography Declaration on the Granting of Independence to Colonial Countries and Peoples G.A. Res. 1514 (XV) of 14 Dec. 1960, Naples Political Declaration and Global Action Plan Against Organized Transnational Crime G.A.Res. 49/159 94th Plen.Mtg. (23 Dec. 1994) Programme of action for the full implementation on the Declaration of the Granting of Independence to Colonial Countries and Peoples G.A. Res. 2621 (XXV) (1970) The Importance of the Universal Realization of the Right of Peoples to Self Determination and the Speedy Granting of Independence to Colonial Countries and Peoples for the Effective Guarantee and Observance of Human Rights G.A. Res. 33/34 (23 Nov 1979) United Nations Code of Conduct for Law Enforcement Officials G.A. Res. 34/169 (17 Dec 1979) Universal Declaration of Human Rights G.A. Res. 217A (III), UN Doc. A/810 at 71 (1948)

(ii) General Assembly and Security Council Resolutions in Shortened Form GA Res 376 (V) GA Res 377 (V) GA Res A/RES/998 (ES-I) GA A/RES/999 (ES-I) GA Res 1514 (XV) GA Res 2621 (XXV)

(7 Oct 1950) (3 Nov 1950 (4 Nov 1956) (4 Nov 1956) (14 Dec 1960) (12 Oct 1970)

GA Res 33/34 GA Res 34/140 GA Res 34/169 GA Res 35/48 GA Res 48/218B GA Res 49/159

(23 Nov 1979) (14 Dec 1979) (17 Dec 1979) (4 Dec 1980) (29 July 1994) (23 Dec 1994)

SC Res 83 SC Res 161 SC Res 169 SC Res 788 SC Res 813 SC Res 1132

(27 June 1950) (21 Feb 1961) (24 Nov 1961) (19 Nov 1992) (26 Mar 1993) (8 Oct 1997)

SC Res 1160 SC Res 1199 SC Res 1203 SC Res 1239 SC Res 1244

(31 Mar 1998) (23 Sept 1998) (24 Oct 1998) (14 May 1999) (10 June 1999)

(iii) International Court of Justice Cases Certain Expenses of the United Nations (Advisory Opinion) [1962] ICJ Rep 151 Reparations for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174 (iv) Other Courts and Tribunals International Criminal Tribunal for the Former Yugoslavia (ICTY) Appeals Chamber, Prosecutor v Dusko Tadic a/k/a’Dule’ Oct. 2 1995, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Judicial Reports 1994–1995 ILR 105 (1997) (v) Selected Policy Documents, Reports and Manuals A More Secure World, Our Shared Responsibility: Report of the Secretary-General’s High Level Panel on Threats, Challenges and Change (Dec 2004) viewed on 2 Feb. 2005 at

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Index ad hoc sovereign forces 13 alternatives to 15 permanent and volunteer UN legion 18–22 permanent force of rotating states’ units 15–17 standby forces 17–18 legions and guard forces, origins and problems 13–15 regional peacekeeping and declining power of UNSC 22–7 Afghanistan 20, 72, 73, 98, 99, 110, 117, 124, 145, 172 African Union Mission in Sudan (AMIS) 220 agent–principal relations 107–8, 161, 167 Albania 25 Amnesty International 172, 173, 219 Angola 48, 49, 54, 61, 79n103, 95, 122, 123, 124, 150 Annan, Kofi 17, 28, 51, 53, 163, 202, 219, 220 armed conflict 4, 10, 39, 54, 98, 100, 149, 170, 224 and belligerents 160 conduct of 168 cost containment in 110–11 extinguishing 201 US and 94, 109, 150 ASEAN 28 Australia 44, 96, 120, 197 authority 1, 6, 23, 24, 104, 149, 153, 192, 194, 195, 197, 221 absence of 26 and coercion 120, 154 corporations and 142 feudal 42 and legitimacy 97 private 91–9 sovereign 14, 89, 123, 124, 158

of states 42, 56, 97, 111, 168 transitional 204–5 and US politico-economic movements 95 see also power Azerbaijan 42, 44 Bahamas 96 Ballesteros, Enrique Bernales 53, 54, 55, 56, 57, 81n133 Barlow, Eeben 122 Bearpark, Andrew 155 Belarus 44 Belgium 49, 52, 68 Blackwater USA 3, 4, 62, 145, 147, 150, 157, 164, 169, 172, 218–21 Blackwater Worldwide 170 blended metal round 169 Bolkovac, Kathryn 156 Booze-Allen & Hamilton (BAH) 62, 202 Bosnia 21, 67, 144, 148, 154, 195, 222 Boutros-Ghali 17, 18, 24, 67, 203 Britain 41, 50, 62, 171 British Association of Private Security Companies (BAPSC) 154, 155 British East India Company 61, 90 British Mercenary Organisation 96 Brooks, Doug 99, 100, 141, 142, 148, 149, 151, 152, 153, 155, 156, 157, 160 Cambodia 4, 195, 204 Canada 68, 117 Chad 206, 219 civilians 6, 169 consent 196–7 contractors 109, 117 danger to 49, 68, 172 de-mining and 99 deprivation of vital assistance to 144 253

254 Index civilians – continued and EO 68 logistics 147 security services companies 62, 99 taxonomy of 8, 40 code of conduct and company motives 154–5 coercion 5, 89, 90, 92, 104, 209 and authority 120, 154 Cold War 22, 25, 41, 93, 107 Colombia 42, 58, 61, 98, 145 commercialisation 61, 68, 69, 100, 125, 141, 176, 201, 222 of contract military 114 firms and 146, 165 information technology and 94 of military labour 118 commercialized national army units 48 Comoro Islands 61 compensation 140, 145, 197 condotta 46 condottieri 46, 61, 158 Congo 40, 41, 45, 48, 52, 53, 54, 150 conscription 42–3, 47, 121 contract force 7, 8, 64, 94 and Charter powers 193–4 deployment of, and impact 71 and revived trusteeship 202–6 see also contractors contractors 4, 5, 7, 64, 68–9, 111 alleged involvement in violence 173 coordination with regional forces 144–5 discipline and criminal law for 194–200 home states and UN, bilateral agreements between 198–9 management of 65–7 moral turpitude and 112 responsibilities 108 versatility 70 see also contract force Convention, OAU 49 co-operation 5, 87n242, 102, 160, 171, 173, 195 clandestine 164

lack of 142 mutual 88 states 89, 93, 113, 155 strengthening of 22 corporate management, effect on states’ interests 100–4 and flexibility 101 state and corporate perceptions of legitimacy, differences between 103 Croatia 79n103 Dallaire 18, 208 Darfur 3, 4, 99, 144, 150, 219, 220 Defense Base Act, US 145 del Prado, Jose L. Gomez 169, 227n38 delegation of power 24 De-mining 99, 222 democratic deficit 94 Democratic Republic of Congo (DRC) 54, 72, 158–9, 162, 206, 219, 222 Denard, Bob 61, 158 DiamondWorks 123, 124 Diehl, P.F. 22, 200, 201 diplomacy 4, 9, 52, 54, 58, 65, 69, 218 collective 221 sense in 221–3 disarmament, de-mobilisation and re-integration (DDR) programs 71 disintegration 16, 93, 97 Djibouti 166 DynCorp 60, 62, 63, 98, 117, 145, 147, 154, 156, 172, 222 earmarked forces see standby forces model East Timor 4, 67, 219 ECOMOG (Economic Community of West Africa Monitoring Group) 26, 48, 68 economic dominance, American 95 ECOWAS (Economic Community of West African States) 23, 26 efficacy measurement 200–2 Egypt 49

Index 255 El Salvador 4, 36n112 Engagement Group 222, 223 Eritrea 162 Ethiopia 13, 79n103, 162 Executive Outcomes (EO) 53, 61, 68, 72, 95, 96, 97, 122, 124, 150 Fiji 44, 58, 119 First Protocol Additional to the Geneva Conventions (1977) 49 flat fee concept and African conflicts 149 flexibility 69, 184n128 corporate 101 foreign citizenship, desire for 44–5 French Foreign Legionnaires and four-step test for mercenary status 46 and French Foreign Legion 63, 71 and French mercenarism 42–3 foreign volunteers 61 France 41, 46, 49, 61 freebooters 61 Geneva Conventions 169, 199 global salvationism 143 globalization 93, 129n54, 204 and combat services 96 suffusion by forces of 95 goodwill 93, 102, 107 Greece 25 Greystone 164 Grunberg, Michael 122 Guard force, non-military 14 Guatemala 36n112 Guehenno, J-M. 2, 220 Gurkha Security Guards (GSG) 162 Gurkhas 19, 41, 71 and four-step test for mercenary status 46 Hague Declaration (IV, 3) Concerning Expanding Bullets 169 Haiti 206 Halliburton 90, 174, 175, 190n225 Hammarskjöld 15, 52, 53, 78n89 Herzegovina 222 Honduras 36n112

Horst, Karl R. 172 Howe, Herbert 26, 48, 96 human rights abuse of 4, 5, 21, 23, 26, 28, 105, 115, 173, 204, 221 armed contractors and 5 corporates and 142, 154 discourse 203 mercenaries as threat to 53, 58 in quasi-regulatory contexts 143 Human Rights Watch 58, 219 human security 125, 203 humanitarian intervention 5, 6, 64, 106, 107, 116, 205 contested 69 resisting 55, 119, 204 see international humanitarian intervention; intervention see also international humanitarian intervention (IHI) 5, 225 and readiness to deploy, in peacekeeping operations 19 reinforcing 208 see also humanitarian intervention illegitimacy 57, 61, 123 impartiality 4, 72, 144, 178n28 In Larger Freedom 51, 146, 202 India 44, 49 Indonesia 120 institutional responsibility 100 Inter-company conflicts 115 International Committee of the Red Cross (ICRC) 72 International Crisis Group 163, 219 international humanitarian law 187n178, 195, 208 adherence to 168–70 International Peace Operations Association (IPOA) 148 capacity 148–52 legitimacy 156–8 regulation 152–6 scepticism reasons 158–63 US Govt. interests 163–7 international recognition 97 interstate warfare 55, 114

256 Index intervention 16, 17, 23, 26, 56, 123, 159, 193, 220 Balkans 27 complex 223 corporate 68 European 27 humanitarian 6, 55, 64, 69, 105, 106, 107, 116, 204, 205 legitimising 106 mercenary, in Africa 53 regional 25 see also international humanitarian intervention intrastate conflicts 6, 72, 149, 150, 160, 208 humanitarian aid in 144 Iraq 4, 5, 20, 24, 40, 44, 45, 63, 90, 94, 98, 99, 108, 109, 110, 117, 124, 142, 145, 147, 167, 169, 170, 172, 206, 227n38 Italy 49, 68 Ivory coast 206, 219 Jordan

67, 147, 170

Kabbah, Ahmed 79n103, 171 Kabila, Laurent 48 Katanga rebellion 52 KBR 63, 90, 98, 147, 157, 174 Kimberley Certification Process Klein, Yair 61, 115 Korea 41, 44 Kosovar Liberation Army 97

143

L-3 63, 147 law of war 168 legions and guard forces, origins and problems 13–15 legitimacy 57, 68, 102, 124, 156–8 and authority 97 and illegitimacy 123 problem for honest business 103 state and corporate perceptions of, differences between 103 of violence 91–2, 118, 203 legitimate national liberation movement 57 Liberia 23, 26, 48

Libya 58 Lie, Trygve 13, 14, 15 litigation risk, over employee injury and death 145 logistic support companies 62–3 Logistics Civil Augmentation Program (LOGCAP) 174 The Long War 109 Malaysia 49 Maldives 41 Manchuria 13 Mercenaries Convention (1989) 54–5 failure of 57, 153 mercenary 8, 39 definitions and classification problems 43–7 effectiveness of treaty 149–50 non-state mercenarism, UN view of 52–60 privatised adjunct, in support of peacekeeping operations 63–73 and state 48–52 taxonomy 60–3 use of 42 waging war, historically pervasive means of 40–3 see also individual entries militarised commerce 123 military ethics 67–8 military market, illicit 114 military mercantilism 48 Military Professional Resources Inc (MPRI) 62, 147, 157, 165 military train-and equip companies 62 Millennium Declaration 146 Montreux Agreement 155 moral hazards and PMSCs 110–16 cost containment in armed conflicts 110–11 guile, by corporate leadership 113 illicit and licit military market 114–15 management issues 111 moral turpitude 112

Index 257 states and organized crime, unhealthy symbiosis 116 temptations 113–14 A More Secure World 5 Morocco 51 Mozambique 4 Mugabe 23 multilateral operations, cost in 107 Munch, Wolfgang 195 Muscat 41 Namibia 4 national security 93, 95, 223 nation-state 40, 42 NATO (North Atlantic Treaty Organization) 25 naturalisation scheme 44 Nazi Germany 41 negligence 145, 154, 156, 207 of employer and dishonest employees 170 Nepal 46, 119 nepotism political, and market failure 174–5 neutrality 42, 52, 70, 165 of state 118–19 New Zealand 117 NGOs 28, 70, 73, 143 risks to 72 and UN 72, 110, 192, 144, 222 Nicaragua 4, 36n112 Nigeria 26, 48, 54, 68, 150, 171 non-intervention 52 non-state 92 license for violence 89–90 power 208 see also non-state mercenarism, UN view; risk and industry non-state mercenarism, UN view authority of states 56 Congo mercenaries 52 de-stabilisation of legitimate governments 57 Mercenaries Convention (1989) 54–5 and proscription on hiring mercenaries 57–8

Regional Consultation for Latin America and the Caribbean (2007) 59 Special Rapporteur on Mercenarism 53–4 Third Meeting of Experts (2004) 59 UNAMSIL 55 and Working Group 58 Northbridge Services 97 Norway 49 Oman 41, 50, 60, 79n103 ombudsman 155 P5 consensus on deployments 104 Pakistan 41, 49, 51, 60, 210n15 Papua New Guinea 42, 96, 120 Paris Peace Conference (1919) 27 participatory legitimacy 157 patrimonial networks 49 patronage 98 peace enforcement units 18 Pentagon responsibility 109 permanent and volunteer UN legion 18–22 permanent force of rotating states’ units 15–17 Philippines 50 political risk assessment, problems in 170–2 political violence 44, 52, 121, 166, 204 politico-economic movements, US 95 post conflict stabilization and reconstruction 109 Powell, Colin 219 power 14, 54, 89, 97, 153, 205, 206 Charter 193–4, 196, 224 delegation of 24, 25, 194 executive 123 fungible 165 governments 90, 98, 174 moving of 146 and military–industrial complex 99 non-state 208 politics 52, 103

258 Index power – continued shift in 94, 146 state and 16, 43, 91, 104, 166, 203, 204, 224 subversion, resistance to 116 UNSC and regional peace keeping 22–7 veto 104 see also authority; private authority Price, David 173 Prince, Eric 3, 5 private authority 91–9 and combat services 96 economic dominance, American 95 globalization, suffusion by forces of 95 national security 93 non-core support and non-fighting 98–9 power interests 97–8 and military–industrial complex 99 private employment, of military personnel 118–19 private military and security companies (PMSCs) 96, 97, 153 adherence to international humanitarian norms 168–70 and clandestine cooperation 164–5 and moral hazards 110–16 inappropriately violent 172–3 political risk assessment, problems in 170–2 weaponry, occasional indeterminacy of 167–8 private military company (PMC) 53, 61, 96, 100, 123, 142, 150, 155 privatized adjunct, in support of peacekeeping operations 63–73 public–private security environment 88 corporate management, effect on states’ interests 100–4 de-stabilising capacity of resistant states 116–21 history 89–91 moral hazards and PMSCs 110–16

private authority, rise of 91–9 UN and resistance to change 121–5 UN issues 104–8 US policy changes, implications from 109–10 Qatar 60, 146 Quadrennial Review

109

Regional Consultation for Latin America and the Caribbean (2007) 59 regional peacekeeping and declining power of UNSC 22–7 resistant states, destabilizing capacity of 116–21 corporate medicine 117 neutrality 118–19 recruitment restriction, by Govt. 120 taxing workload 116–17 unpopularity of military recruitment 117–18 resource extraction 92, 122–3, 150 The Responsibility to Protect 5, 146, 204, 205 Revolutionary United Front (RUF) 49, 61, 115 Rikhye 22 risk and industry 140 contractor issues 141–8 cost effectiveness 141–2 diversification 147–8 human rights 142–3 IPOA capacity 148–52 legitimacy 156–8 regulation 152–6 plan scepticism reasons 158–63 US Govt. interests 163–7 vulnerabilities 167–75 Russia 44, 58 Rwanda 7, 17, 18, 21, 48, 51, 53, 93, 105, 122, 148, 208 Sandline International 61, 68, 79n103, 96, 97, 120, 171

Index 259 Sarbanes-Oxley Act 155 Saudi Arabia 41, 51, 60 Scahill, Jeremy 172 Schooner, Stephen 142 Secure Border Initiative 147 Security Council 7, 18, 19, 24, 25, 52 absence of authority supplied by 26 contract forces and Charter powers 193–4 management over battlefield choices, in use of force 105 rotating states on 104 see also individual entries security sector reform (SSR) 71 self-determination 50, 57 promotion of 203 threat to 53 self-interest 24, 26, 50, 51, 176, 204, 205, 223 Serbia 222 Sierra Leone 49, 55, 61, 68, 72, 79n103, 115, 122, 123, 124, 148, 150, 158, 162, 171 Singer, Peter 26, 101, 124, 141, 142, 221 small arms and light weapons (SALW) 70 Somalia 5, 49, 68, 72, 93, 164, 195, 206 South Africa 42 South Korea 50 sovereignty 49, 55, 57, 67, 89, 165, 193, 196, 203, 204, 205 ad hoc forces legions and guard forces, origins and problems 13–15 permanent and volunteer UN legion 18–22 permanent force of rotating states’ units 15–17 standby forces 17–18 challenges of 204 and authority 123, 124, 158 and fealty 90 patronage 91

regional peacekeeping and declining power of UNSC 22–7 retreat from 123 troops 68, 69, 198, 116 Spain 13, 41, 46, 58, 61 Spanish Civil War 41 Special Rapporteur on Mercenarism, UN 53–4, 57, 78n100 Spicer, Colonel 101, 103, 171 Sri Lanka 41 standby forces 17–18 state mercenarism 8, 48–51 see also non-state mercenarism Status of Forces Agreement (SOFAs) 195, 197–8 Sudan 105, 205, 219, 220 Sweden 49 Tajikistan 44 Taylor, Charles 49 technical support companies 63 Thailand 50 Third Meeting of Experts (2004) 59 Thomson, J.E. 42, 51, 89 transnational crime 116 Transparency and Accountability in Security Contracting Act 173 Triple Canopy 62, 147, 154 trusteeship, revived and contract forces 202–6 Turkey 42 Uganda 48, 219 Ukraine 44, 79n108 United Arab Emirates (UAE) 49, 60, 145 United Kingdom see Britain United Nations 51 apparatus 206–7 criticisms of 207–9 Code of Conduct for Law Enforcement Officials 143 Commission on Human Rights 59 Department of Peacekeeping Operations (DPKO) 70

260 Index United Nations – continued Directorate for Military Contracting 66 Emergency Force 15 Human Rights Commission 78n100 International Covenant on Civil and Political Rights 196 membership 6 Mission in the Democratic Republic of Congo (MONUC) 160, 163, 222 and NGOs 144 Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights 143 and resistance to change 121–5 Temporary Executive Authority 204 view, of non-state mercenarism 52–60 Volunteer Reserve 14 United Nations Mission in Sierra Leone (UNAMSIL) 55 United Nations Observer Mission in Liberia (UNOMIL) 26 United Nations Operation in Somalia (UNOSOM II) 49, 65 United States 50, 61, 65, 95, 96, 98–9 Uniting for Peace’ Resolution (1950) 14 Urquhart, Brian 16, 21, 28, 47, 107 US Indo–China hostilities 116 uti possidetis principle 56, 81n134

Vietnam 50, 61 violence 21, 29, 42, 90, 123–4, 219, 224 armed security and 99 clandestine 166, 169 commercialising 114 contractor 172–3 effective 144 excessive 40 intrastate 93 legitimate 41, 54, 56, 91, 118, 203, 218 military 48 monopoly on 92 and non-state license 89–90 organised 110, 143, 152 PMSC and 172–3 political 52, 121, 166, 204 unanticipated 110 uncertain outcomes, leading to 108 see also risk and industry Voluntary Principles on Security and Human Rights 143 Waxman, Henry 145 whistleblowers 113, 156, 172 The Working Group on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Rights of People to Self-Determination 58, 59, 80n133–4, 222 World Summit ‘Outcome Document’ (2005) 28 Yemen 72, 96 Yugoslavia 21, 25, 56, 67, 105 Zaire 51, 53, 97, 148 Zimbabwe 23, 48

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