The Status of Private Military Security Companies in United Nations Peacekeeping Operations under the International Law of Armed Conflict

By Crowe, Jonathan; John, Anna | Melbourne Journal of International Law, June 2017 | Go to article overview

The Status of Private Military Security Companies in United Nations Peacekeeping Operations under the International Law of Armed Conflict


Crowe, Jonathan, John, Anna, Melbourne Journal of International Law


Private military security companies ('PMSCs') are present in almost all United Nations peacekeeping operations. The utilisation of PMSCs by international organisations raises distinct and complex legal issues. This article discusses the status of PMSCs under the international law of armed conflict, focusing particularly on their involvement in UN peacekeeping activities. We argue that assessing the position of PMSCs requires a sharper understanding of the legal status of civilians who may play an active role in hostilities. The role of PMSCs in UN operations, in particular, places pressure on the widespread view that civilians who participate in hostilities thereby violate the law of warfare. The article then reviews the options for holding PMSCs accountable for violations of international law. We argue that this issue is best addressed by treating international humanitarian law, international human rights law and international criminal law as an interlocking body of norms and mechanisms applicable in armed conflict.

                           CONTENTS

  I Introduction                                16
 II The Role Of PMSCs in UN Peacekeeping        19
   A The UN's Mandate and Peacekeeping          19
   B The Involvement of PMSCs in UN Operations  21
III PMSCs and the Principle of Distinction      24
   A The Role of Humanitarian Norms             24
   B Applying the Principle of Distinction      26
   C The Significance of Combatant Status       28
 IV A Holistic Approach to PMSC Accountability  30
   A The Accountability Deficit                 30
   B An Integrated Law of Armed Conflict?       32
   C The Role of Human Rights                   35
   D Criminal Accountability                    30
  V Conclusion                                  42

I INTRODUCTION

In June 1998, the then United Nations Secretary-General Kofi Annan surmised that the world was 'not... ready to privatize peace'. (1) Over a decade later, not only have states engaged the services of private companies in areas of conflict, but the UN itself has regularly utilised private military security companies ('PMSCs') in its peacekeeping and humanitarian operations. (2) The engagement of these companies is partly because of the reluctance of many states to contribute troops to the UN's peacekeeping operations ('PKOs'), but also due to the increasingly complex nature of PKOs themselves. Within UN PKOs, PMSCs perform various security, logistical and support functions. PMSCs work in PKOs either through a direct contractual agreement with the UN or as part of the national contingent contributed by a Troop Contributing Nation ('TCN'). However, the engagement of PMSCs in PKOs remains controversial. In addition to ethical concerns about the role of private military actors in peacekeeping generally, there is also potential for PMSCs in PKOs to violate international law. This then raises the question of how PMSCs can be held accountable. There are significant barriers to the accountability of PMSCs under international law. These accountability gaps arise for three principal reasons.

First, the utilisation of PMSCs in PKOs poses a challenge to existing conceptions of security. The traditional view of international law positions the state as the sole provider of security. (3) The German sociologist Max Weber famously identified the monopoly of the legitimate use of force as a hallmark of statehood. (4) However, the authority of states over security has diminished progressively over time, partially due to the gradual emergence of new actors on the international order. (5) The increasing prominence of intergovernmental organisations--and the establishment of the UN, in particular--has diffused state power over security. (6) These organisations have their own separate legal identities; they are 'endowed with rights and obligations distinct from those of the Member States'. (7) Crucially, the UN has the power to use force in PKOs in self-defence or in 'defense of the mandate'. …

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