1 st Committee of the General Assembly Topic Area A Outsourcing military functions to private contractors and its possible impact on warfare and international security.
TOPIC AREA A: Outsourcing military functions to private contractors and its possible impact on warfare and international secutity. TABLE OF CONTENTS PAGE Welcoming letter 3 Introduction to the Committee..3 Introduction to the topic...4 Definitions..5 Historical Background...6 Analysis of sub-topics..8 Legal Background...10 The issues at stake..12 Possible solutions...12 Conclusion 13 Points to be addressed.13 Bibliography...14 1 st Committee of the GA Topic Area A 2
Welcoming letter Dear Delegates, It is our pleasure to welcome you to this year s 1 st Committee of the General Assembly, also known as DISEC, of the ThessISMUN 2016 which will take place in Thessaloniki between the 4 th and 8 th of May 2016. This year the topics under discussion will be: Topic Area A: Outsourcing military functions to private contractors and its possible impact on warfare and international security, Topic Area B: Breaking the link between the illicit transaction of rough diamonds and armed conflict as a contribution to prevention and settlement of conflicts. This study guide will provide you general information on the first topic. Let us remind you that this topic is one of the most challenging that this committee has faced, because it is rather clear that in order to solve it you should be ready to face challenges that concern the international law, the domestic law of the country that you represent and have the will to stick to your country s policy. The issue under discussion comprises of many elements that will be attached below and you should be ready to face a great debate when the committee will function. For a delegate to be fully prepared to discuss this topic it is necessary that a decent research has been made and the basic knowledge has been acquired. Thus, we urge you all to be fully committed to the rules of procedure of the General Assembly that apply to our committee and of course to thoroughly examine this study guide and the information that it provides. We are expecting tense dialogues, fruitful debates, respect of the international law and the diplomatic courtesy that a conference like this deserves. Your chairpersons. Introduction to the Committee The United Nations were established at 1945 after the end of the Second World War. The primary goal of the organization is to safeguard peace all over the five 1 st Committee of the GA Topic Area A 3
continents. Based on that idea, the General Assembly started to function, including in its corps the First Committee, also known as the Committee on Disarmament and International Security (DISEC). The First Committee of the General Assembly is the one responsible for the maintenance of international peace and security. The mandate of the one of the main committees of the General Assembly is devoted to disarmament and any possible threat to the international community as we experience it and it is also responsible to respond to any possible future impediments that may threaten international security. The Disarmament and International Security Committee includes all member states of the United Nations, following the principle of one member, one vote, providing the opportunity to member states to focus among others on issues of global safety, nuclear proliferation, arms control etc. Although the resolutions of the committee are not binding, their normative nature renders them salient and respected by the Security Council, a main organ that DISEC is in full cooperation when needed. Introduction to the topic The international community faced great challenges the last twenty years; armed conflicts around the globe, terrorist threats, development of nuclear proliferation are some challenges that still remain an impediment towards the evolution of the world. There is a common factor among those challenges that leads us all to examine elements that apply to the international community; security. The 1st Committee of the General Assembly is the one responsible for the international security and this year the topic under discussion examines, among others, the maintenance of international security through the existence of private contractors that carry out military duties and services. It is widely known that the military forces of each state apply to the Ministry of Defense; therefore they are part of the state. Thus, the security that the military forces provide is of common access and applies to the laws of each state. During recent years a question has been raised; should we privatize security? This question leads to a careful examination on whether private companies should carry out military services or not. Private contractors who provide military services and personnel are also known as Private Military Companies (PMCs) and their personnel are being characterized as mercenaries, due to the fact that those who are employed for military purposed are also being paid. 1 st Committee of the GA Topic Area A 4
In order to understand the way that those companies have been created and the services that they offer, we must focus on two definitions. The first definition concerns the Private Military Companies and the second applies to the people who carry their functions, also known as mercenaries. Definitions The Montreaux Document 1 is a document that was produced under the cooperation of the Official Government of Switzerland and the International Committee of the Red Cross. In this document the definition of the Private Military Companies is acquired and it states as follows that: PMSCs are private business entities that provide military and/or security services, irrespective of how they describe themselves. Military and security services include, in particular, armed guarding and protection of persons and objects, such as convoys, buildings and other places; maintenance and operation of weapons systems; prisoner detention; and advice to or training of local forces and security personnel. On the other hand, the United Nations have already described what it is considered to be a mercenary. According to the first article of the United Nations International Convention against the Recruitment, Use, Financing and Training of Mercenaries, a mercenary is a person who 2 : (a) Is specially recruited locally or abroad in order to fight in an armed conflict; (b) Is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar rank and functions in the armed forces of that party; (c) Is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflict; (d) Is not a member of the armed forces of a party to the conflict; and (e) Has not been sent by a State which is not a party to the conflict on official duty as a member of its armed forces. A mercenary is also any person who, in any other situation: 1 The Montreaux Document, Web: https://www.icrc.org/eng/assets/files/other/icrc_002_0996.pdf 2 United Nations Convention against the Recruitment, Use, Financing and Training of Mercenaries, Web: http://www.un.org/documents/ga/res/44/a44r034.htm 1 st Committee of the GA Topic Area A 5
(a) Is specially recruited locally or abroad for the purpose of participating in a concerted act of violence aimed at: (i) Overthrowing a Government or otherwise undermining the constitutional order of a State; or (ii) Undermining the territorial integrity of a State; (b) Is motivated to take part therein essentially by the desire for significant private gain and is prompted by the promise or payment of material compensation; (c) Is neither a national nor a resident of the State against which such an act is directed; (d) Has not been sent by a State on official duty; and (e) Is not a member of the armed forces of the State on whose territory the act is undertaken. Having those two definitions in mind, the committee should move forward to expressing its outcome based on the meaning that they provide. Historical Background In order to examine how Private Military Companies (PMCs) and mercenaries function, we should promptly acquire knowledge on the matter of their existence. Thus, it would be preferable to make a research on how PMCs and mercenaries have appeared in the international community. The existence of mercenaries is a factor that takes us back to the ancient history. Ancient Greeks, Romans, Alexander the Great, Popes etc. used to hire mercenaries, auxiliaries or soldiers of fortune in order to fulfill their wishes for the expansion of their empire. Thus, the existence of mercenaries is not a new phenomenon. For example, the Arabs used mercenaries in order to fight the feuds of Europe in the Middle Ages, General Washington used mercenaries in the Independence War of the United States against the British Empire, mercenaries were also used in the Thirty Years War. Mercenaries existed long before PMCs were created. The first unofficial form of a Private Military Company can be tracked back in the Middle Ages when the Arabs united against the European powers. Europe was then regulated by feuds and the fight against the Arabs created the excessive need for reinforced powers. One of the most prestigious firms of the time was the Knights that fought against the Arabs in order to safeguard their land 3. 3 Γεώργιος Μαργαρίτης, Πόλεμος και Πολιτική, Από τον Μεσαίωνα στην Αναγέννηση, Web: https://opencourses.auth.gr/courses/ocrs228/ 1 st Committee of the GA Topic Area A 6
Though, the official creation of Private Military Contractors can be traced back in 1941 4 when Captain David Stirling hired mercenaries under the Special Air Service in order to fight the Nazis. Captain Stirling later funded one of the most famous and powerful PMC in recent history, WatchGuard International. The practices of Captain Stirling were later applied by other world leaders as well, reaching the peak point when Margaret Thatcher and Ronald Reagan privatized government services. Since 1941, when PMCs first appeared in their current form, the industry has evolved much faster than it was expected. According to PW Singer, the author of the book Corporate Warriors; The rise of the Privatized Military Industry, Private Military Contractors include all services that were once limited to state militaries and that includes the training of mercenaries, military intelligence, logistics etc. The evolution of PMCs can be owed to a great extend to their use by the United States Pentagon. The Pentagon has employed PMCs in order to facilitate its military in wars such as the Gulf War, the War in Yugoslavia and most recently in Iraq and Afghanistan. According to a recent research, PMCs were hired by the Pentagon in order to operate along with the US military forces. For every 50 troops one PMC was hired in the Gulf War and by the time of the War in Iraq, PMCs constituted the second largest force after the US military. Private Military Contractors were also used during many civil wars, e.g in Angola, Papua New Guinea and elsewhere. According to PW Singer, the evolution of PMCs is based on three reasons that have combined in one dynamic. First of all there was the excessive need for supply and demand and this refers to the military forces of the United States. After the end of the Cold War in 1991 the US military forces were reduced down by two thirds based on the well-known BRAC (Base Realignment and Closure) that was initiated by the Secretary of Defense, Dick Cheney. The dynamics have changed due to the help that Pentagon needed because of the US s permanent war agenda and the small arms that were used to local conflicts. Another factor that leads to the evolution of PMCs is the changes that have occurred in the conduct of war; the distinctions between civilians and soldiers are now volatile, terrorism is still undefined and warfare has also changed. Last but not least, the privatization revolution is a key element that contributed to the rise of the Private Military Industry. Based on recent facts, Singer claims that businesses 4 Outsourcing War: The Rise of Private Military Contractors (PMCs), Stephen Lendman, Web: http://dissidentvoice.org/2010/01/outsourcing-war-the-rise-of-private-military-contractorspmcs/ 1 st Committee of the GA Topic Area A 7
can do better than official governments, so this is a main reason for the expansion of PMCs. Along with the United States, the Private Military Industry is growing very fast in other major countries such as China and that leads us to specify the types of PMCs that exist all over the globe. There are different types of PMCs that offer their services and they apply to several criteria in order to determine their nature. Companies that provide military services that are similar with those of the conventional state army, such as soldiers as combatants with weapons can be characterized as Military Provider Firms. Those firms actually supply the official state army with extra soldiers in the battle fields. A lighter version of those firms can be traced when companies provide training to soldiers instead of actual ones and they also provide bodyguard services. Such companies can be employed in order to provide security to firms, businesses, buildings etc. and they are known as Military Consulting Companies. The Military Support Firms provide services that are non-lethal such as analysis, intelligence, weapons maintenance and noncombat functions. The Private Military Industry is growing and costs over $100 billion each year, operating in more than 50 countries around the globe. The biggest employer of the PMCs is the Pentagon that has used over 3000 PMCs during the war in Iraq, a country that has been characterized as the biggest marketplace for the Private Military Industry. Analysis of sub-topics The exclusive use of force belongs to the official government of each state and especially to its military forces. But, PMCs act under the auspices of governments and this exact issue complicates the situation. State sovereignty is being reduced or even eradicated by the use of PMCs those recent years. Handing the intelligence work to PMCs can easily render a state dependent on that firm and slowly lose its power over the industry. It can also provide to the firms excessive influence on the government under which they act and the combination is very dangerous as it is conducive to the loss of sovereignty and the eradication of state authority and exclusivity upon the use of force. The fact that companies provide supplies, training of soldiers and weapons to the official military forces 1 st Committee of the GA Topic Area A 8
of each state gives them the opportunity to influence each government and have major sway over the government s actions 5. A problem that occurs concerning PMCs is the legality that follows their existence. As it was previously mentioned, PMCs act under the auspices of governments, thus they are protected by government contracts that apply to the law of each state. For example, in the United States it is very difficult to investigate a private military firm because it is not accountable to the US military but to the Pentagon and the Ministry of Defense. The way that PMCs operate in the countries where they are deployed also poses a problem concerning the issue of legality. There was an incident in Iraq in 2004 where mercenaries that were employed by Blackwater, an American PMC, tortured women and children, carried out nighttime raids, mistreated the local population of Fallujah and murdered men and teenage boys with the excuse that they were looking for terrorists. Later on, the local people killed the employees but whether one agrees or not with that end, it was the only justice that those mercenaries received for their actions. It is hard to conduct an investigation on this and any similar matter due to the secrecy that the government contracts provide and also due to the vague description that follows those contracts. Governments usually do not specify what those companies should do, how they are supposed to act and especially if the employees will be held legally responsible for their actions under the watch of the government. Another example that confirms how vague those contracts are is the violent actions of another firm, DynCorp. This private firm was actually employed by the US Ministry of Defense in order to organize the Iraqi system of justice. But a small number of their employees that were heavily armed led the Iraqi police on a raid of the former leader, Achmed Chalabi. Later on, DynCor did not receive an official warning and this proves that the contract that was signed was vague enough to allow this kind of violations. Nighttime raids, murders and tortures are serious crimes but mercenaries and the personnel of PMCs in general cannot be held accountable for their actions due to the immunity and impunity that they enjoy. PMCs and their personnel are not subject to regulations that point out to whom they are accountable and when it comes to national level the situation gets even more complicated. The impunity that applies to mercenaries derives from the vagueness of the contracts that PMCs sign. Private firms can do whatever they want due to the fact that they can go as far as the declarations of intent that always point out that their personnel is 5 The Role of Private Military and Security Companies in Modern Warfare, Web: http://www.globalresearch.ca/the-role-of-private-military-and-security-companies-in-modernwarfare/32307 1 st Committee of the GA Topic Area A 9
advised to respect the national and international laws and the international human rights standards. The state stands powerless over private firms and their personnel due to the protection that they enjoy. At the international level things are more complicated. The Geneva Convention, which will be analyzed below, states clearly the distinction between civilians and armed combatants. Employees of PMCs are not characterized as civilian due to the fact that they take part in the machinery of war, they are employed by governments and they carry arms. The Geneva Convention describes combatants as people directly and actively involved in hostilities but we cannot easily assume that mercenaries can be described as people that apply to that exact definition. As it was stated before, PMCs act without any barriers. This fact undermines democracy. Since they are not accountable to any justice they undermine the democratic institutions and people of each state do not have the right to have any control of their actions, since in modern societies there must be a general rule of checks and balances on the forms of power and the sole power of use of force belongs to the state. Legal Background Under the list of Criminal Law, the Legal Committee of the United Nations has rated the International Convention against the Recruitment, Use, Financing and Training of Mercenaries 6. This convention is the resolution that was adopted by the General Assembly of the United Nations in 1989. Ten years earlier Nigeria proposed that an item concerning the acts of mercenaries should be discussed and later on the proposal turned into an official resolution that urged the discussion of that matter. An Ad Hoc committee for drafting the resolution was established and the outcome was voted upon in the General Assembly of 1989. The Convention describes in a meticulous manner the meaning of mercenaries and it describes the legal framework under which the employees of private firms should act. The articles of the Convention are based on the definition of mercenaries that was introduced by the Geneva Convention in 1949 but they expand their application in armed conflicts and any other situation. According to the Convention, every State Party should set a legal framework over any of the offences that are described in the articles of the document. The Convention 6 United Nations Convention against the Recruitment, Use, Financing and Training of Mercenaries, Web: http://www.un.org/documents/ga/res/44/a44r034.htm 1 st Committee of the GA Topic Area A 10
entered into force on October 20 th, 2001. Countries that possess the biggest military in the world and have not ratified the Convention are China, France, India, Japan, the Russian Federation, the United Kingdom of Great Britain and Northern Ireland and the United States of America. Under the same scope, the Montreaux Document 7 was introduced. The document describes the legal obligations for States related to operation of PMCs during armed conflicts. It was initiated by the Red Cross and the government of Switzerland and it excludes companies and NGOs from officially joining the Montreaux Document. The document describes the role of PMCs in armed conflicts and the status of their employees under the Geneva Convention. Seventeen governments from various regions of the world have signed this protocol; Afghanistan, Angola, Australia, Austria, Canada, China, France, Germany, Iraq, Poland, Sierra Leone, South Africa, Sweden, Switzerland, the United Kingdom of Great Britain and Northern Ireland, Ukraine, and the United States of America. The document states that the rules of international law apply to the relations between states and PMCs during armed conflicts, it recalls the legal obligations of PMCs and their personnel, it is not obligatory and legally binding for the states that have signed it but it addresses the respect to international law and international humanitarian law and all the international agreements that have been made and concern the role of PMCs and their personnel. It also provides a definition for PMCs and mercenaries according to the already existing ones that were provided by the Geneva Convention and the UN Convention against the Recruitment, Use, Financing and Training of Mercenaries. The Geneva Conventions 8 and their protocols form the core of international law concerning armed conflicts and the role of unarmed civilians in hostilities. According to the additional protocol I of the Geneva Convention, mercenaries do not have the right to be given the status of combatants or prisoners of war. Under several circumstances, the participation of mercenaries in a war is punishable from some States but the only country that has objected the provisions of Article 47 of the additional protocol I, is the United States that does not consider the article to be customary. Among others, the protocol states that a mercenary should not be punished without a previous trial. 7 The Montreaux Document, Web:https://www.icrc.org/eng/assets/files/other/icrc_002_0996.pdf 8 Customary IHL, Rule 108, Mercenaries, Web: https://www.icrc.org/customaryihl/eng/docs/v1_rul_rule108 1 st Committee of the GA Topic Area A 11
The issues at stake It has been speculated that several International Organizations are contacting Private Military Companies in order to profit from their services. During our sessions, we will examine whether those incidents are reproachable and how could they damage the status quo of the international community. Besides International Organizations, it has been acknowledged that several countries contract PMCs in order to enhance their military in warfare zones. As it was mentioned before, there were incidents of killings of civilians, children and women by PMCs personnel and that the legal process varies according to the legal system of each state. Based on those facts, a company named Blackwater, the biggest PMC operating, was accused of violations of human rights and also for the killings of 17 Iraqi civilians in 2007 9. The representative of the UN Working Group on the use of Mercenaries declared that it is high time that the UN moves on the establishment of several clauses, concerning the role of the PMCs in transnational conflicts, in the already existing treaty on mercenaries. To this extent, the committee should be able to regulate the role of the Private Military Contractors in conflict areas and how the relations between a PMC and a state could harm international security. Another question that this committee should try and give an answer to is whether Private Military Contractors undermine the status of the state that hires them. It has been mentioned that states are the sole responsible for the use of force and that PMCs have broken this privilege. This is certainly a fact that should be examined in order to specify the role of the state towards any Private Contractor. Possible solutions According to a recent study 10, no solutions are efficient enough if they do not apply to each state s national laws, the regulations of the Ministry of Defense and the capability of the army. The states are being separated into weak and strong, in order to facilitate the process of finding feasible solutions to face the expansion of PMCs. A key factor that needs to be addressed in order to reach a 9 Blackwater convictions spotlight need for treaty on private security UN experts, Web: http://www.un.org/apps/news/story.asp?newsid=49175#.vsc39giltiu 10 Different Strokes for Different PMC Users, Web: http://www.huffingtonpost.com/davidisenberg/different-strokes-for-dif_b_742873.html 1 st Committee of the GA Topic Area A 12
solution is the political will of each country to limit the function of PMCs on its ground. In this research, it is being stated that a weak state is more vulnerable towards the presence of PMCs in its territory. On the other hand, a strong state cannot easily give up on using PMCs without experiencing any difficulties. Having those two elements as a basis, the committee should work upon any possible national reforms and cooperation, due to the transnational nature of PMCs, in order to face a realistic approach to the issue under discussion. Conclusion The work of the United Nations is to maintain peace and security. The 1 st Committee of the General Assembly is the main committee of the GA that possesses the authority to discuss upon issues that concern the international community in terms of disarmament and international security. According to the topic that we are discussing we should think of possible solutions to the ongoing existence of the PMCs as firms, their personnel and their impact on warfare and international security. Mercenaries and PMCs are not accountable to any justice for their actions and that complicates the international community and the international law. Their actions still remain unpunished and the impunity that follows those private firms poses a threat to hundreds of unarmed civilians in the battlefields. The use of mercenaries in the modern era eradicates democratic institutions and threatens the existence of states and their sovereignty, thus it poses a threat to people. The 1 st Committee of the General Assembly should unite under the auspices of the UN and carry out one of the most challenging issues that affect the international community. Points to be addressed 1. Is the impunity of PMCs and their personnel tolerable in the modern era? 2. Are mercenaries a tool for governments to act without any impact on their influence? 3. Should mercenaries be entitled to the status of a combatant and if yes, how will this proposal be shaped? 4. Are PMCs entitled to the use of force under severe circumstances? 5. Should PMCs and their personnel act as the official military force of a state when they deem necessary? 6. Should PMCs and their personnel supply the official military forces of a state in warfare zones and if yes, how could that comply with international and domestic law? 1 st Committee of the GA Topic Area A 13
7. Are PMCs used by states in order to avoid criminal charges against violations of international law? 8. Is the Private Military Industry a way to pressure governments in order to handle their sovereignty? 9. What should the role of PMCs be in conflict areas? 10. Is the use of force a privilege of states or are we stepping towards the creation of a new era of state sovereignty? Bibliography -The Montreaux Document, Web: https://www.icrc.org/eng/assets/files/other/icrc_002_0996.pdf -United Nations Convention against the Recruitment, Use, Financing and Training of Mercenaries, Web: http://www.un.org/documents/ga/res/44/a44r034.htm -Γεώργιος Μαργαρίτης, Πόλεμος και Πολιτική, Από τον Μεσαίωνα στην Αναγέννηση, Web: https://opencourses.auth.gr/courses/ocrs228/ -The Role of Private Military and Security Companies in Modern Warfare, Web: http://www.globalresearch.ca/the-role-of-private-military-and-securitycompanies-in-modern-warfare/32307 -Outsourcing War: The Rise of Private Military Contractors (PMCs), Stephen Lendman, Web: http://dissidentvoice.org/2010/01/outsourcing-war-the-riseof-private-military-contractors-pmcs/ -Customary IHL, Rule 108, Mercenaries, Web: https://www.icrc.org/customaryihl/eng/docs/v1_rul_rule108 -Blackwater convictions spotlight need for treaty on private security UN experts, Web: http://www.un.org/apps/news/story.asp?newsid=49175#.vsc39giltiu -Different Strokes for Different PMC Users, David Isenberg, Web: http://www.huffingtonpost.com/david-isenberg/different-strokes-fordif_b_742873.html 1 st Committee of the GA Topic Area A 14
-Regulation of Private Military Companies in Iraq by Nihat Dumlupinar, Master Thesis 1 st Committee of the GA Topic Area A 15