The starting point for any discussion of the legal framework of UN peace operations is that the power to undertake or create such operations is not written anywhere in the UN Charter. Instead, the legal basis for peacekeeping is most commonly considered to be located in the implied powers of the organization.Footnote 1 One scholar argues that it can be construed as a provisional measure under Article 40,Footnote 2 whereas Christine Gray argues that ‘the debate seems to be without practical significance’.Footnote 3 Nonetheless, it does mean that the specific rules on peace operations are not set down in the Charter; rather, they have evolved through peacekeeping doctrine over the past six decades.Footnote 4 Most UN peacekeeping operations are established via a Security Council resolution – sometimes under Chapter VII (or in part), but often no chapter or article is specified. The General Assembly can also establish peace operations using the Uniting for Peace Resolution, but has rarely done so.Footnote 5 In contrast to these, the enforcement actions the UN was supposed to undertake using forces under Article 43 of the Charter have instead been conducted by states, regional organizations or coalitions of states under an authorization by the UN Security Council.Footnote 6
There is, thus, no single treaty provision against which to measure the possibility to use PMSCs as a troop contingent and in other roles in UN peace operations. On one hand, the principles of peacekeeping – consent, impartiality and a ‘restricted’ use of force – play an integral role in ensuring the legality of any peace operation that is not established under Chapter VII of the UN Charter. On the other hand, the mandate itself, the Status of Forces Agreement between the UN and the host state and the agreements between the UN and troop- and police-contributing states may contribute to the technical legal basis for the presence of the force in a state.
It is also important to understand the legal basis for police deployments considering that the one context in which PMSCs are contracted by a state to recruit, deploy and manage peacekeepers is in relation to UN Civilian Police.Footnote 7 By and large, police deployments within UN peace operations occur according to the same framework that governs military and civilian deployment for the rest of the operation.Footnote 8 The specific rules governing the force itself will flow from a combination of the UN Security Council resolution setting the mandate of the operation, international law, the law of the police contributing state and the host state's laws.Footnote 9
While there is no black letter rule prohibiting the use of PMSCs in peace operations – in particular as the troop contingent itself – the use of PMSCs must be able to conform to all aspects of this framework if their use is to be contemplated. All of these principles, policies and internal directives must also be set against the backdrop of general international law, including international human rights law, and in particular international humanitarian law when it applies in UN peace operations. This rather nebulous framework thus sets the stage for the method that will be used in this part to test the possibility to use PMSCs as the military or police contingent in peace operations.
3.1 Agreements Governing Troop and Police Contributions
This brief overview outlining how UN peacekeeping operations are established and staffed provides context for the ways in which private military and security personnel may be engaged in an operation.
First, the UN Secretary-General usually presents a report to the Security Council outlining the proposed mandate, functions, composition and deployment of the mission. The Security Council then adopts a resolution establishing the operation on the basis of that report. The Secretary-General sets about staffing and equipping the mission, from the troop and police contingents to the civilians. In early peace operations, some states eagerly offered their national armed forces for the Secretary-General to include in the peacekeeping force.Footnote 10 As a general rule, however, the Secretary-General approaches states to request contributions of troop or police contingents. They are integrated into the force as follows:
Armed military peacekeepers that are contributed by their States are deployed as a contingent and commanded by a contingent commander usually from their State. Consequently, military members serving as part of national contingents are under operational control of the [UN Force Commander], but remain part of their respective national armed forces and under national command. Thus, there is no direct contractual relationship between contingent members and the UN.Footnote 11
This description helps to illustrate the usual relationship between states and the UN during a UN peace operation and provides a backdrop against which to consider the potential role or place of contractors in such missions.
Military personnel are also provided to missions by states on an individual basis. These tend to be military observers, who are seconded to the UN by their sending state. In this capacity, they are ‘experts on mission’Footnote 12 and they must sign ‘an undertaking which requires them to comply with all relevant UN rules, regulations, and directives’.Footnote 13
Individual civilian police are likewise seconded by their sending states to the operation. As Oswald et al. indicate, ‘they are under the operational control of the [Police Commander]’ rather than under national command, but ‘it is usual for police personnel to also have to report back to their national Governments’.Footnote 14 They also sign individual undertakings requiring compliance with the rules as outlined above.
Recruiting civilian police to serve in UN peace operations has long been a challenge. As Schmidl points out, states do not keep extra units of law enforcement personnel for extra-territorial deployment, unlike military forces.Footnote 15 Consequently, it was rare that an entire unit could be sent. In the late 1990s, Schmidl observed that ‘police officers, even from one country, usually are drawn from a wide array of police forces and have highly diverse backgrounds’.Footnote 16 The UN DPKO has worked to change this tendency, developing a policy on Formed Police Units, the deployment of which has grown drastically.Footnote 17 Formed Police Units are ‘cohesive mobile police units, providing support to United Nations operations and ensuring the safety and security of United Nations personnel and missions, primarily in public order management’.Footnote 18 Thus, police may also be provided to a mission as a Formed Police Unit, in which case they are deployed on a similar basis as troop contingents, with a national commander being responsible for discipline.Footnote 19 However, they are subject to a memorandum of understanding (MOU) between their sending state and the UN and they also sign individual undertakings.Footnote 20 The DPKO also created the ‘Standing Police Capacity’, a pool of twenty-five professional police officers based at the UN logistics base in Italy who can be deployed rapidly at the start-up phase of a new mission.Footnote 21
As Part I illustrated, in addition to these contributions from state forces, the UN relies on contractors in order to staff peace operations.
3.2 Status of Forces Agreements
Status of forces agreements between the United Nations and the host state in which the peace operation is operating also form part of the legal framework. In addition to the policies described above, the work of the UN Office of Legal Affairs regarding Status of Forces Agreements (SOFA) and contractors provides evidence of UN tolerance of PMSCs in peace operations and further illustrates the potential limitations on their use.
Beginning in 1995, on request by the DPKO, the UN Office of Legal Affairs began drafting clauses to include in Status of Forces/Status of Mission Agreements (SOFAs or SOMAs) with respect to contractors. The OLA took this initiative in response to some of the difficulties experienced by contractors. In fact, the Assistant Secretary-General for Peacekeeping Operations requested the views of the OLA as to whether ‘privileges and immunities provided for under the [Convention on Privileges and Immunities of the United Nations] could be extended’ to contractors.Footnote 22 The OLA characterized the functions performed by contractors as ‘commercial in nature and rang[ing] from the procurement of goods and the supply of services to construction and catering services’. As such, they did not benefit from the status of experts on mission as a group as a whole. The OLA offered no opinion as to whether more important functions could be outsourced to contractors (such that contractors entrusted with such functions could benefit from the status of experts on mission), thereby leaving open the possibility that contractors could be tasked with ‘specific and important’ functions.Footnote 23
The OLA then indicated to the Assistant Secretary-General for Peacekeeping Operations that it was developing a set of clauses with respect to contractors that could be proposed for inclusion in SOFAs or SOMAs. It warned, however, that ‘the willingness of this Office to consider extending such facilities to the Contractors would not of itself result in their obtaining them since Governments have in the past expressed reservations on including the Contractors in the SOFAs/SOMAs.’Footnote 24 The contractor ‘facilities’ the OLA mentioned refer in particular to
freedom of movement for the proper performance of the services; prompt issuance of necessary visas; exemption from immigration restrictions and alien registration; prompt issuance of licences or permits, as necessary, for required services, including for imports and for the operation of aircraft and vessels; repatriation in time of international crisis; right to import for the exclusive and official use of the United Nations, without any restriction, and free of tax or duties, supplies, equipment and other materials.Footnote 25
As such, the host state may set limits on what contractors may or may not do through the terms it agrees to or refuses in the SOFA. In the absence of a mission-specific SOFA, there appears to be no basis in the Model SOFA to presume a host state can be deemed to have accepted the inclusion of PMSCs in the operation.Footnote 26 Theoretically, a host state could insist on a clause prohibiting the use of private security contractors in a SOFA, or prohibiting PMSCs from carrying out any number of other specified activities. It may also seriously impede the use of contractors simply by denying them certain facilities or immunities, rendering the execution of their tasks virtually impossible. Dieter Fleck argues that the role of PMSCs should be provided for in the SOFA, which should also ‘provide for cooperative solutions of contentious issues’ that may arise in relation to them.Footnote 27
Nothing, thus, in the legal basis for peace operations or in the basic documents establishing them would appear, prima facie, to prohibit the use of PMSCs in various roles. As these provide no blanket prohibition, the possibility of using them would depend on the specific terms of the agreements.
