The Anti-Mercenary Norm and United Nations' Use of Private Military and Security Companies.

Author:Bures, Oldrich

1 Introduction

In this article, we examine the recent profound changes in the United Nations' use of services provided by private military and security companies (PMSCs). (1) Historically, the UN played a prominent role in both the institutionalization of the anti-mercenary norm and its linkage to the norms of self-determination and decolonization. Since the 1960s, the UN General Assembly has passed more than 100 resolutions criticizing mercenaries. For example, according to the 1976 resolution on the "importance of the universal realization of the right of peoples to self-determination," which has been reaffirmed annually until 2005, the use of "mercenaries against national liberation movements and sovereign states constitutes a criminal act and... mercenaries themselves are criminals." (2) The UN Security Council also adopted several resolutions against mercenary action already in the 1960s and 1970s, condemning states that persist in permitting or tolerating the recruitment of mercenaries. (3) Similar statements can be found in numerous reports of the former UN special rapporteur on mercenaries, Enrique Ballesteros, who considered PMSCs the "new operational model of mercenarism" that threatened the civilian populations, peace, and states' sovereignty. (4) These resolutions and reports set the stage for further legal institutionalization of the anti-mercenary norm, as manifested in the 1989 UN International Convention against the Recruitment, Use, Financing and Training of Mercenaries. Moreover, they also influenced the thinking of senior UN officials in the Secretariat and key UN agencies, who had not seriously considered the use of PMSCs' services in the 1990s and 2000s, albeit the possibilities of using private force had been mooted on several occasions within the UN system. (5)

As of 2018, however, all parts the UN system, including its humanitarian, political, and peacekeeping missions, routinely use a wide variety of the services of PMSCs worth several hundred million dollars annually (see Figures 1 and 2). The special rapporteur's position no longer exists and, although its replacement is still called 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 (hereafter Working Group on the Use of Mercenaries) and many of its members have been critical toward PMSCs, its latest reports have primarily focused on guidelines and regulations of PMSCs' activities at both the national and international level. Moreover, in May 2011 the Secretary-General for the first time publicly announced that the UN can resort to using the services of armed PMSCs as the last resort, due to the increasing demand for UN action in highly insecure (post) conflict areas and the continuing lack of supply of protection for UN personnel and operations by the host countries or other UN Member States. (6) The UN Department of Safety and Security subsequently published the first official UN policy (7) and specific guidelines on the use of PMSCs' services. (8) All of this indicates that the use of PMSCs by the UN is nowadays presumed to be acceptable. (9)

In this article, we therefore ponder why the UN has shifted its position on the use of PMSCs so dramatically? Since the UN played such a prominent role in the twentieth-century institutionalization of the anti-mercenary norm, we primarily focus our analysis on the influence of this norm on the UN's direct use of PMSCs' services. Following Sarah Percy's constructivist approach, our analysis therefore focuses on violations of the anti-mercenary norm within the UN system and the justifications and condemnations of these violations by UN officials. This is because, according to Percy, violations, justifications, and condemnations of the norm can provide evidence for its influence in three ways. (10) First, by examining the frequency and nature of violations, and finding explanations for them, we can show how important a norm is. Second, the reaction to the violations of a norm is extremely important--condemnation of the violations is a sign of the continuing impact of the norm while lack of reaction or support for the violations indicates a recess of the norm. Third, the justifications forviolations of a norm provide empirical data foranalysis of the motives behind justifications, which can reveal the (lack of) importance of the norm. Moreover, the specific aspects of justifications point to which elements of the norm are most significant.

The structure of the article is as follows. In the next section, we introduce the anti-mercenary norm and discuss its relevance to contemporary PMSCs. In the third section, we analyze the violations of the anti-mercenary norm by the UN. In the fourth and fifth sections, we explore the official UN justifications and condemnations of these violations, respectively. In the sixth section, we discuss our key findings and their implications. In the last section, we conclude that the anti-mercenary norm is no longer puritanical when it comes to the UN's use of PM SCs. Beyond departing from key elements of the anti-mercenary norm, the official and widespread use of PMSCs by the UN undermines its long-established identity as a key anti-mercenary norm entrepreneur and also its ontological security.

2 The Anti-Mercenary Norm

"For as long as there have been mercenaries, there has been a norm against mercenary use." (11) This opening statement from Percy's book Mercenaries: The History of a Norm in International Relations highlights the long pedigree of the international norm of opposition to mercenarism, whose origins can be traced as far back as the twelfth and thirteenth centuries. Nevertheless, albeit it is possible to trace different variants of this norm throughout history, Percy contends that there is "a clear thread of continuity between the pre-nineteenth century variants of the anti-mercenary norm and those of the twentieth and twenty-first centuries" when it comes to its two key aspects: (1) the belief that mercenaries are negative actors because they do not fight for the proper cause and, as a result, undermine the group that hires them; and (2) the belief that mercenaries are uncontrolled and, as a result, undermine the role of the state as the primary holder of the monopoly of the use of force. (12) Moreover, while acknowledging that this norm "cannot explain all aspects of state behaviour," Percy further argues that the anti-mercenary norm "is neither epiphenomenal nor merely an intervening variable" because "it has shaped state interests in such a way that the use of private force has been restricted and the opportunities for mercenaries themselves have been constrained." (13) In fact, by the 1990s, the norm had become so strong and internalized that its influence on policy was "puritanical, in that its influence [appeared] to be automatic and no longer tied to the facts," (14) prompting states (and other actors) to behave irrationally in terms of cost-benefit analysis of the use of private force (i.e., against the logic of consequences).

While there are other accounts of the history and the influence of the anti-mercenary norm, (15) we follow Percy's approach because, by singling out only two aspects of the anti-mercenary norm (a larger group cause independent of personal profit motivation and the control of the proper authority) as crucial, it allows for the analysis of the norm's influence on the use of private force in different historical periods. Specifically, Percy argues that although twenty-first-century PMSCs should not be considered mercenaries because they associate themselves with a larger group cause and they are under "tight" state control, (16) they "do not avoid the anti-mercenary norm entirely." (17) As a consequence, neither the presence of a sizable PMSCs industry, nor the fact that powerful states are eager to use its services, "poses a major challenge to the continued influence of the norm against mercenary use," which continues to shape the opportunities available to PMSCs and the ways that states and other actors use their services. (18) Percy's approach therefore offers a plausible way out of the hitherto inconclusive terminological debate that is fundamental for all assessments of the proscriptive scope of the anti-mercenary norm--while some would concur with the former UN special rapporteur on mercenaries that PMSCs are little more than corporatized mercenaries and thus deserve the accompanying moral and legal opprobrium, others would maintain that PMSCs are legitimate military and security service providers, capable of self-regulation under industry codes and (inter)national regulatory initiatives. (19)

In this context, it is important to note that, with the exception of the Working Group on the Use of Mercenaries, the UN has always stressed that it uses only defensive security services of private security companies (PSCs) and not military services of private military companies (PMCs). (20) While this is empirically correct in most cases where the UN directly hires security services (see below), these same companies are also known to provide military services to other clients in the same areas of operation. Thus, in line with the current academic literature and the 2008 Montreux Document, (21) which summarizes the pertinent international legal obligations and good practices for states' use of private security services, in this article we use the umbrella term private military and security companies.

3 Violations of the Norm: UN Use of Private Military and Security Companies

Internal UN reports (22) and external studies (23) have established that contracting the services of PMSCs is nowadays a common and systemwide practice of most, if not all, UN agencies, funds, programs, departments, country teams, and local duty stations. They have used PMSCs for a wide range of services, including both armed and unarmed...

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