The United Nations Security Council and War:The Evolution of Thought and Practice since 1945 (109 page)

Of the six main cases of mercenary intervention, it is worth noting that all were in Africa, none was successful, and only two caused serious problems for the state concerned. Mercenary action in Comoros was undeniably serious, but it occurred in a location so peripheral that it took some time for the outside world to become aware of events. Given Comoros’ remote location, tiny population, and economic unimportance it is hardly surprising that coup attempts were possible and very unlikely that such coups would lead to regional instability. The Congo remains as the only other case where mercenaries were, at some stages, effective enough to cause serious problems.

Of course, even though mercenaries in Africa were ineffective and perhaps not particularly threatening on the ground, the fact that they demonstrated that it was possible for a crack Western team of mercenaries to intervene in African conflicts might have been considered to be threatening enough. The most compelling explanation for the overreaction to mercenaries no doubt comes from the political context of decolonization and national self-determination. The presence of white mercenaries (even not very good ones) in a decolonizing Africa, seeking to demonstrate its independence and self-reliance, signalled significant weakness and the persistence of colonialism. However, even the threat to the project of decolonization (or the appearance of such a threat) must be put into context; the failure of one operation may be regarded as a misfortune, but the failure of six looks like incompetence.

As a result, the reaction in the General Assembly, with its vocal and growing majority of newly independent states, was far more political than it was practical. The GA was far less concerned with what mercenaries actually
did
then with what the presence of mercenaries might
mean.
The presence of white mercenaries visibly undermined African claims to independence and self-reliance, and strong feelings about mercenaries in the context of national self-determination were the initial impetus for regulating and controlling mercenaries.

The central difficulty with overreacting to the practical threat posed by mercenaries, and with associating mercenaries with threats to national self-determination, is that it prevented the GA and its associated bodies from responding sensibly to the appearance of private military companies in the 1990s. When PMCs first appeared they were dealt with according to the existing, national self-determination based, rubric already used in the GA and by the Special Rapporteur.
³⁵

PMCs were active in Angola, Sierra Leone, and Papua New Guinea. While each instance of private military company activity had its flaws, it is hard to see how they challenged national self-determination. In Sierra Leone, for example, the private military company Executive Outcomes (EO) was hired by the state to help it resist a particularly violent rebel movement. Ballesteros argued that EO ‘had no qualms about recruiting mercenary elements … a factor which would undermine the internal stability of any country’.
³⁶
This judgment seems odd, given that Sierra Leone was already suffering grave internal instability and that EO brought a measure of peace significant enough to allow the holding of elections. However, the Special Rapporteur continued to condemn private military companies, no matter what the substance of their actions, until his last report in 2004. In this report, he summarizes his activities since 1987 and states that ‘whether individually, or in the employ of contemporary multi-purpose security companies, the mercenary is generally present as a violator of human rights.’
³⁷
He goes on to say, without providing evidence, that ‘military security companies’ have gone unpunished for murders, rapes and kidnappings of children.’
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Ballesteros’ deeply negative view of private force coloured the UN response to new private military and security companies, and has led to the institutionalization of hostility to private force within the UN, the implications of which will be addressed below.

While the General Assembly has dealt with mercenaries in terms of the threat they pose to national liberation, and has opposed all three types of private force, the Security Council has dealt with mercenaries only in terms of the threat they pose to international security, and only dealt once with a private military company. This is, of course, not surprising given the SC’s institutional focus on peace and security; but it has resulted in a series of resolutions which more accurately reflect the reality of mercenary action. Looking at mercenaries purely in terms of their activities, as opposed to their impact on national self-determination, the Security Council dealt with mercenaries rarely.

There are four sets of Security Council resolutions dealing with mercenaries: on the Congo in the 1960s, Benin in the 1970s, the Seychelles in the 1980s, and in West Africa after 2000. The first series called for the removal of mercenaries from the situation in the Congo during the ONUC peacekeeping mission between 1960 and 1964.
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By 1964, the Security Council called for the removal of mercenaries as a ‘matter of urgency’.
⁴⁰
There were also resolutions seeking to control mercenaries in the 1966–8 coup attempts. The first resolution, in 1966, was especially concerned with the use of Angola (then under Portuguese control) as a base for mercenary operations, and called for all states, especially Portugal, to refrain from assisting mercenaries.
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In 1967, the Council adopted two further resolutions in relation to the Angola/Congo situation, declaring its concern at the threat posed by mercenaries to the ‘territorial integrity and independence of states’ and condemning Portugal’s failure to prevent the use of Angola as a mercenary base.
⁴²

The next Security Council resolution on mercenaries dealt with the situation in Benin.
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The resolution reaffirmed the condemnation of mercenaries first mentioned in Security Council Resolution 241 of 1967, and then made a stronger condemnation. The resolution on Benin further called upon states to ‘to exercise the utmost vigilance against the danger posed by international mercenaries and to ensure that their territory and other territories under their control, as well as their nationals, are not used for the planning of subversion and recruitment, training and transit of mercenaries designed to overthrow the Government of any Member State’.
⁴⁴

The Security Council adopted further resolutions dealing with the mercenary coup attempt in the Seychelles. The hijacking of an aircraft during the coup attempt brought special attention. The Council stated that it was ‘deeply concerned at the danger mercenaries represent for all States, particularly the small and weak ones’.
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The Council reiterated its resolution of 1967 and went on to condemn ‘all forms of external interference in the internal affairs of member states including the use of mercenaries to destabilize states and/or to violate the territorial integrity, sovereignty and independence of states’.
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Between the mid-1980s and mid-1990s, the Security Council did not comment on mercenary action, and, perhaps more tellingly, made no comment on the actions of PMCs in Sierra Leone, Angola, and Papua New Guinea during this period. However, the Security Council has made a number of resolutions relating to the use of mercenaries in West Africa since 2000.

The Security Council raised special concerns in relation to Côte d’Ivoire, where mercenaries were actively working and where the government had considered hiring the private military company, Northbridge Security Services.
⁴⁷
The Council urged ‘all Ivorian parties to refrain from any recruitment or use of mercenaries or foreign military units and [expressed] its intention to consider possible actions to address this issue’.
⁴⁸

The Council has also made resolutions relating to the problems caused by mercenaries in Liberia and in West Africa more generally. In 2005, the Council
recognized ‘the linkage between the illegal exploitation of natural resources such as diamonds and timber, illicit trade in such resources, and the proliferation and trafficking of arms and the recruitment and use of mercenaries as one of the sources fuelling and exacerbating conflicts in West Africa, particularly in Liberia’.
⁴⁹
Security Council Resolution 1467 of 18 March 2003 explicitly asserted that the proliferation of small arms and mercenary activity is a threat to West Africa.

The Security Council’s approach reveals that mercenaries were seen as threats to international peace and security far less often than they were perceived as danger to national liberation. The lack of Security Council attention to the questions posed by PMCs and PSCs suggests that these actors have not presented the same threat to international peace and security as their more mercenary forebears, but that old-fashioned mercenaries operating in West Africa today are still a significant security problem for the region.

The Council’s approach provides us with clues about how new forms of private force ought to be treated today. Matters involving mercenaries came to the Council’s attention for three main reasons. First, the Security Council became involved when there was a threat to the territorial integrity or existence of a particular state, as it did in all the cases outlined above. Secondly, the Council was concerned when mercenaries internationalized a conflict by operating within one country from a base in another, or with another country’s support. This was the case in both phases of mercenary involvement in the Congo, and again in the Seychelles. Finally, the Council has recognized that the flow of African mercenaries between West African conflicts poses a threat to the security of West African states and the region as a whole. These issues are a more realistic threat to the international system than the threats that mercenaries posed to national self-determination more generally in the 1960s.

Conversely, the General Assembly has treated private forces as
inherently
threatening, regardless of their employer and regardless of their behaviour on the ground. The difficulty with the GA approach is that a belief in that private uses of force are wrong by nature, regardless of what private fighters do and how they do it, is singularly unsuited to dealing with PMCs and PSCs.

The different approaches of the GA and the Security Council to the mercenary question have two important implications. First, while the Security Council’s approach to mercenaries has been cautious, the more radical GA approach has
become firmly entrenched within the wider UN system and the GA has taken the lead in dealing with new manifestations of private force. This hostility has closed off one potential avenue for the Council: the use of private force in peacekeeping operations in combat. Secondly, the GA’s more vocal response has meant that its approach has become dominant within the UN, making regulation of the private security industry and the continued legal control of mercenaries more difficult. There are, however, considerable merits in the idea of mitigating the negative effects of private force on the basis of what private fighters do, rather than attempting to make a blanket condemnation of all types of private force. Moreover, focusing on private force only when it poses a threat to national self-determination obscures the scope and nature of threats posed by private actors in the international system more generally.

The GA’s negative response to mercenaries has been deeply institutionalized within parts of the United Nations, with the result that new instances of private force have been treated negatively by the extensive network of bodies associated with the General Assembly.

The early response to mercenaries by the GA was reinforced by swift action to create law outside the UN system. In 1974–6, the Diplomatic Conference on International Humanitarian Law, under Nigerian and American leadership, began to draft what would become Article 47 of Protocol I additional to the Geneva Conventions, which deprives mercenaries of combatant status. The early adoption of laws to control mercenaries leaves many with a sense that mercenaries, PMCs, and PSCs are illegal, even though in reality no such explicit ban exists.
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Article 47 does not criminalize mercenaries, it merely removes from them the protection of combatant status.

The association between anti-mercenarism and national liberation also reinforced hostility towards private force and ensured that such hostility stayed active even when mercenaries and other manifestations of private force were not common, as they were not through much of the 1980s. The inclusion of anti-mercenary provisions in GA resolutions promoting or protecting self-determination extended the life of the former by attaching them to the latter. As long as the debate over national
self-determination gained speed, it did not matter if concerns about mercenaries lost steam, because the two were associated both in the public eye and in the letter of UN documents. An excellent example of this is the series of repeated resolutions declaring the practice of mercenarism to be a criminal act, alongside other acts which threatened national self-determination discussed earlier.

During the 1980s, when mercenaries and other types of private force were relatively rare on the international stage, the GA kept anti-mercenary feeling alive. For example, the inclusion of a draft article on mercenaries in the Draft Code of Crimes against the Peace and Security of Mankind
⁵¹
alongside genocide and slavery demonstrates how, even during a period where mercenaries were inactive, hostility towards them persisted.

The repeated mention of anti-mercenarism in UN documents and in documents of international law, including the Draft Code of Crimes against the Peace and Security of Mankind, had a further institutionalizing effect. Those working
within
international institutions, in particular the International Law Commission and various other organs of the UN, were left with a constant impression that mercenaries were illegal actors needing eradication. Those ‘in the know’ knew that mercenaries were dangerous, and these individuals were responsible for making policy in the event that any mercenary action causes problems. Thus, it is not surprising that when PMCs and PSCs emerged in the 1990s, they were dealt with within the parameters of existing international law and of the UN’s traditional approach, even though PMCs were quite different from mercenaries in that they would only work for states, and PSCs are more different still.