For a fistful of dollars

It is a fact that no one has been denying: the United Nations interacts with mercenaries, although they are carefully re-named “private military companies” so as not to upset diplomatic susceptibilities. Celhia de Lavarene examines the issues.

When 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” held a press conference at the UN in August, New African tried to figure out the difference, if any, between a mandate to protect or to respect sovereignty.

It is no secret that over the years, the UN has been forced to use the services of “private military companies” or to deal with armed groups to protect its own people, even though it should be the host country’s duty to protect UN staff. Yet, in post-conflict countries where infrastructure is non-
existent, it is impossible to rely on governmental security forces.

Having observed that international stability does not come automatically from the nation state, the UN concluded that peace and security were endangered by intra-state conflicts and that victims of conflicts were predominantly civilian populations.

While the UN came to realise that the idea of collective security should no longer be limited to protection by nation states, Western private sector companies were making the case for the use of “outsourcing” to private military companies for UN peacekeeping operations. In 2002, the British House of Commons noted that “the notion that private military forces might be used for politically sensitive and high-profile areas of UN operations such as peacekeeping and peace enforcement is problematic.”

In fact, during the past decade and more, the UN has had a shifting position towards mercenaries. In his 1999 report to the UN Human Rights Commission, the UN Special Rapporteur, Enrique Bernales Ballestero, wrote “private military companies are developing their strategies and offers in a very aggressive way, putting forward arguments to get some legitimacy based on military efficiency, [and] cheaper operations as well as on their ‘personnel’s proven experience’.” He urged the Human Rights Commission to remember that “mercenaries base their comparative advantages and efficiency on acts. They are not bound to a respect of human rights or to the rules of international humanitarian law.

“Greater disdains for human dignity and greater cruelty are considered efficient instruments for winning the fight,” explained Ballestero.

In 2003, in his final report to the Commission on Human Rights, the Special Rapporteur sounded the alarm: “Activities linked to mercenaries have not disappeared no matter how hard the UN has tried. Updating the UN 1989 convention on mercenaries is needed,” he wrote, adding that private companies offering military assistance, consultancy and security services on the international market should, at the very least, be regulated and placed under international supervision, and that crimes and offences committed by employees of such companies should not go unpunished.

In 2004, Shaista Shameem, the newly appointed Special Rapporteur, addressed two reports to the Human Rights Commission in which she adopted a pragmatic approach, sharply contrasting with her predecessor’s positions and asking for “a fundamental rethinking of the issue of mercenaries and its relation to the promotion and protection of human rights” as well as “a fundamental reconsideration of the responsibility of nation states and the UN, with respect to the activities of actors currently legally defined as mercenaries.”

She cautioned against confusing mercenaries with other actors supplying security services in the world’s troubled hot-spots. Thus, as far as the private military companies were concerned, she considered that in the absence of a clear definition of mercenaries and adequate legislation, the UN should be encouraging company self-regulation to promote a sense of ownership and sustainability.

Many developing countries were opposed to Shaista Shameem’s position. As a result, in April 2005, the Human Rights Commission ended abruptly the mandate of the Special Rapporteur and replaced it by the “Working Group on the use of mercenaries”, composed of five regional independent experts. They were focusing on the agreements between governments which led to immunity from accountability for human rights violations by private military companies and their employees. But what are the rules when it comes to the hiring of armed groups?

“It is well-known that both the UN and NGOs have been forced to cooperate with armed groups, explains reluctantly a UN staff [sic],” a representative of the International Red Cross commented.

“In Bangui for example, the BINUCA had to make [an] agreement with the Seleka to make sure the security of its personnel would be ensured. That was a while ago, for I believe we stopped using the Seleka.”

A diplomat (who prefers to remain anonymous) explained: “How could the UN do otherwise when there is no police and no security. In Somalia, NGOs had no choice but to work with the Shebab rebel group to get access to areas under their control, although the Shebab are under sanctions,” he explained, adding: “NGOs have a special derogation called ‘Humanitarian Carve Out’, specially created for them to have a legal framework. Let’s put it that way: NGOs would not be able to help the population without the Shebab.”  

The fact is that humanitarian agencies working in countries in turmoil, work within an extremely complex environment and despite sporadic glimmers of hope, carving out sufficient humanitarian space to meet urgent needs, remains a struggle.

“Our role is to help people in desperate situations,” explains an employee from Médecins Sans Frontières. “If, to be able to achieve our goals, we are forced to negotiate with armed groups or hire the services of a private military company, we will do so without having a second thought. When the lives of so many people are at stake, we should not have to think twice. Let’s not be hypocritical, sometime we do pay them to reach out to the people in areas that would not be accessible without their ‘protection’, whether it comes from armed groups or private military companies.”

How could anyone envision the idea of a nation state providing security with the use of force when UN missions are often, if not most of the time, set up in countries where the very concept of security is unknown?

What should the UN do, especially when humanitarian aid has to get to the areas held by rebel groups and when the only security provider available is a private military company? Is the risk worth taking? Should the UN take measures to overcome the issues of transparency and regulation regarding those companies? What rules are the mercenaries or armed groups following?

Global efforts to regulate private military and security services have grown of late and are still a topic of discussion. The UN’s panel of experts is trying to develop a policy to raise the extremely unclear standards of recruitment of those companies. Already, the three experts have reached a conclusion and declared: “Mercenaries and private military companies are absolutely distinct.”

Strangely enough, nothing has been envisioned to regulate the use of armed groups – or perhaps the UN is simply not willing to talk about it.