A Brief Explanation of the Private Security Regulatory Initiatives – United Nations Efforts

The United Nations has long had a somewhat complicated stance toward private security companies. To understand the UN approach requires an understanding of the history of the anti-mercenary movements within the U.N.

In the various decolonization-related conflicts throughout Africa in the middle of the last century, mercenaries played a substantial and infamous role. Private soldiers, hired by various parties, fought to counter the independence movements across the continent, with notable involvement in Congo, Angola, Nigeria and elsewhere. The role of mercenaries in these conflicts generated considerable negative sentiment and led to calls for a ban on mercenary activity.

United Nations Resolution 31/34

The movement toward regulating mercenaries began at the U.N. in the 1960s and became gradually more resolute in its efforts to end mercenarism altogether. In 1976, the General Assembly passed a resolution it has repeated every year since, declaring mercenarism a criminal activity.  In Resolution 31/34, titled “Importance of universal realization of the right of peoples to self-determination and of the speedy granting of independence to colonial countries and peoples for the effective guarantee and observance of human rights,” the General Assembly wrote that it:

Reiterates that the practice of using mercenaries against movements for national liberation and independence constitutes a criminal act and that the mercenaries themselves are criminals, and calls upon the Governments of all countries to enact legislation declaring the recruitment, financing and training of mercenaries in their territory and the transit of mercenaries through their territory to be punishable offences and prohibiting their nationals from serving as mercenaries.

While this provision put the onus on states to criminalise mercenarism, both as a status and as an industry, it also set an anti-mercenary precedent.

UN Mercenary Convention

The first international instrument to define mercenaries was a 1972 Anti-Mercenary Convention, developed by the Organization of African Unity (“OAU”; now the African Union).

In 1977, two more international instruments addressed and defined mercenaries: a new OAU Convention and the 1977 Additional Protocol I to the Geneva Conventions.  While these conventions are important, they fell short of establishing a universal ban on mercenary activities.  A few years after Additional Protocol I and the OAU Convention were adopted, the U.N. set its sights on more expansive measures.  In 1984, based on the work of several ad hoc commissions, the U.N. committed itself to the “Drafting of an international convention against the recruitment, use, financing and training of mercenaries.” On 4 December 1989, the General Assembly made good on that commitment by producing the International Convention against the Recruitment, Use, Financing and Training of Mercenaries. The U.N. Mercenary Convention, as it is known, did not, however, garner sufficient signatures to take effect until 20 October 2001.  The Convention is extremely limited in who can be considered a ‘mercenary’ and has only been signed by 33 states – few major powers among them.

UN Special Rapporteur on Mercenaries

In 1987, the U.N. established a Special Rapporteur on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination.  The Special Rapporteurs were largely responsible for promoting the adoption of the U.N. Mercenary Convention, and on collecting information regarding the use of mercenaries.  The office became controversial surrounding the distinction between mercenaries and private security companies.   The final Special Rapporteur, Enrique Bernales Ballesteros, was critical of the definition of mercenaries and proposed amendments to it.  His proposals did not gain any significant traction.

UN Working Group on Mercenarism

The position of Special Rapporteur on Mercenarism was abolished in 2005 and replaced by the U.N. 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, known as the ‘U.N. Working Group on Mercenarism’.

In what may indicate growing recognition that the current legal regimes pertaining to mercenaries are not applicable to private security companies, in July 2010 the U.N. Working Group on Mercenarism unveiled a Draft International Convention on the Regulation, Oversight and Monitoring of Private Military and Security Companies (PMSCs). This Convention, discussed below, drew significant negative attention.  The absence of the term ‘mercenary’ in its title reflected a shift in thinking, or at least an acceptance that private security companies and their employees are distinct from mercenaries.  But this change was seen as mission slip, as the UN Working Group was supposed to focus on mercenaries, not private security.  The Draft Convention failed and the Working Group has produced little since.

UN Draft Convention on PMSCs

The underlying premise of the Draft Convention was that there are certain “inherent state functions” that cannot be outsourced.  While such a stance is fairly uncontroversial, the focus of the Convention was almost entirely on curtailing the outsourcing of those functions with regard to private security companies.

Many of the provisions and general concepts were at odds with the Montreux Document and Swiss Initiatives and were heavily criticized as indicating a bias against the private security industry.  The Draft Convention garnered support from a few countries, but actually drew the ire of many major powers, especially those involved in contracting with the private security industry.  The Convention did not gain sufficient support to proceed.

Up Next

This concludes the series on the regulation of private security companies, but more depth on some of the matters discussed to date will be addressed in forthcoming from Ian.

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