Academic journal article Northwestern Journal of International Human Rights

The Legal Status of Employees of Private Military/Security Companies Participating in U.N. Peacekeeping Operations

Academic journal article Northwestern Journal of International Human Rights

The Legal Status of Employees of Private Military/Security Companies Participating in U.N. Peacekeeping Operations

Article excerpt

INTRODUCTION

¶1 The United Nations has hired private military/security companies (PMSCs)1 to provide security services since at least the Somalian Civil War, when it deployed 7,000 Ghurka guards from Defense Systems Limited to protect relief convoys.2 According to a Global Policy Forum report, U.N. spending on outsourcing security services rose from $44 million in 2009 to $76 million in 2010.3 PMSCs may be used in peacekeeping operations in a variety of roles, including "police and military training and capacity building, security training and consultancy, [and] strategic information gathering."4 In 2012, the U.N. Department of Safety and Security issued a set of formal guidelines through which PMSCs may be hired to provide security services to the U.N.5 Nonetheless, the U.N. Working Group on the Use of Mercenaries, originally formed in 2005 to study "the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination,"6 warned that "there is a risk that, without proper standards and oversight, the outsourcing of security functions by the United Nations to private companies could have a negative effect on the image and effectiveness of the United Nations in the field."7

¶2 Other scholars have discussed the practical issues involved in using PMSCs in U.N. peace operations. While some attempted to highlight the benefits of using PMSCs as part of U.N. operations in comparison with the voluntary system of troop contribution by U.N. Member States.8 Still others highlighted the effectiveness of these companies in assisting with U.N. operations.9 The increased reliance by the U.N. on PMSCs has encouraged some to suggest using them as front-line peacekeepers.10 However, others question this view and argue that PMSCs cannot be hired by the U.N. as peacekeepers.11

¶3 What has received less attention, however, is the legal status of the employees of PMSCs hired by the U.N. This paper analyzes the legal status of PMSC personnel participating in U.N. peacekeeping. In other words, how can the personnel of private companies be categorized when they are used as peacekeepers?

¶4 The outsourcing of military and security services used in U.N. peacekeeping operations to PMSCs creates a gray area in international law. Under international humanitarian law, sometimes called the law of war, peacekeepers who engage in military operations are either civilians engaged in lawful self-defense or unlawful combatants. Conversely, the various international conventions that govern peacekeeping and peace enforcement operations grant peacekeepers the rights of combatants. This tension becomes more acute when PMSCs are utilized, both when they are employed by a Member State and seconded to the U.N., and when they are employed directly by the U.N. itself. The secondment of PMSCs means that a State hires a PMSC and send it to the U.N. to be under its disposal. PMSCs seconded to the U.N. would likely not qualify as peacekeepers under the U.N.'s peacekeeping conventions, while the protections afforded to peacekeepers (such as immunity from local prosecution) seem inappropriate regarding PMSCs hired directly by the U.N. In particular, while PMSCs employed in peacekeeping operations would not satisfy the technical criteria of mercenaries under the law of war, the protections afforded to peacekeepers assume that peacekeeping forces are subject to the domestic justice system of a Member State, which would not be the case with those employed directly by the U.N. This tension seems ineluctable given the current structure of international humanitarian law and U.N. peacekeeping rules.

I. THE INCREASING ROLE OF PMSCS IN U.N. PEACEKEEPING OPERATIONS

¶5 While PMSCs are not currently used as front-line peacekeepers, they are used in various support capacities on peacekeeping missions. Before addressing the legal consequences that would follow should their role evolve to include actual peacekeeping, this paper will describe their current role and arguments in favor of giving them greater responsibilities. …

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