Fase de evaluación

The following two sub-paragraphs will analyse the factor depoliticisation by delegation of the political-instrumentalist model. As the political-instrumentalist model implies that ‘principals’ avoid democratic oversight and control mechanisms for PMSCs because this would increase transparency and reduce the principals’ autonomy, paragraph 2.1.1 will discuss to what extent the UN applied democratic oversight and control mechanisms to its contracted PMSCs during their employment. Paragraph 2.1.2 will set out the delegation of tasks of the contracted PMSCs and will analyse whether the UN aligns with the essential argument of the political- instrumentalist model: privatization is the principals’ strategy of depoliticisation by delegation. Hence, “privatization serves to cover or downplay the roles and responsibilities of governments” (Kruck, 2012, p. 118).

3.1.1 Democratic oversight and control mechanisms

As the political-instrumentalist model implies that democratic oversight and control mechanisms are avoided in order to reduce transparency when outsourcing to PMSCs, the question arise to what extent the UN did apply such democratic oversight and control mechanisms to contracted PMSCs during the mission. Since the UN is large entity with numerous rules and regulations one would expect that the outsourcing of services to PMSCs is regulated and subjected to oversight somehow too. Nonetheless, the UN has not been very transparent about the use of PMSCs and its guidelines until October 2012 when a report from the Secretary-General addressing the General Assembly finally enlightened the world on the use of PMSCs by the UN (Pingeot, 2014). This report was the result of a critical need for a “common UN system-wide policy, criteria and guidelines for the appropriate use of armed private security companies as the last resort in protecting United Nations personnel, assets and operations” (UN Secretary-General, 2012, October 22, p. 2-3). Moreover, the international community pointed out the need for the establishment of “international standards and a code of conduct for the use of private security companies” (UN Secretary-General, 2012, October 22, p. 3). Before 2012, the only guidelines on the use of armed private security companies were set out in the Field Security Handbook (2006) since 2007. Hence, no system-wide policy was present beforehand (UN Secretary-General, 2012, October 22). Therefore, the UN Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise

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of the right of peoples to self-determination stated in a report in 2010 that the UN “lacks a firm system-wide policy governing the hiring of private military and security companies, including issues related to the vetting and monitoring of the companies and their personnel” (UN Secretary General, 2010, August 25, p. 10). The report also pointed out to the complex problem of accountability of PMSCs personnel contracted by the UN. As the use of PMSCs by the UN increased over the years, the serious concerns regarding the outsourcing to these companies also started to raise within the UN entity (UN Secretary General, 2010, August 25). Hence, the UN responded to that by establishing the following UN criteria for the use of armed private security companies in 2012:

“(a) The decision to contract an armed private security company should be taken in accordance with existing approval processes and accountability mechanisms for all security-related decisions;

(b) The United Nations should use services provided by armed private security companies only to cover guarding of personnel at United Nations facilities and mobile armed escorts;

(c) An armed private security company contracted by the United Nations should come under the clear authority and direction of the appropriate organization of the United Nations system with specific policies and guidelines for the United Nations security management system;

(d) In procuring the services of an armed private security company, the United Nations should ensure adherence to the Financial Regulations and Rules and procurement policies and procedures and should choose only companies that meet agreed criteria according to the established vetting standards and mechanisms” (UN Secretary-General, 2012, October 22, p. 4).

Additional to these criteria, the UN concluded that the use of PMSCs “should be consistent with national and international law, the Charter and relevant United Nations resolutions” (UN Secretary-General, 2012, October 22, p. 3). Further, PMSCs are accountable for their own personnel as they do not receive any privileges and immunities similar to UN personnel. Hence, “in cases of misconduct or illegal acts, the personnel of private security companies are subjected to the national law of the country in which they operate” (UN ACABQ, 2012, December 7, p. 9). Accordingly, these above mentioned UN criteria and legal accountability measures

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demonstrate that, at least initiated from 2012 on, the outsourcing of services to armed PMSCs during MONUC/MONUSCO was subjected to existing approval processes, accountability mechanisms, and clear authority. Nonetheless, these guidelines are specifically established for the use of armed PMSCs, implying less strict policies for the use of unarmed PMSCs during the mission.

Finally, the UN became more and more transparent about the use of PMSCs by redesigning the UN Procurement Division website in 2014 in order to, among others, provide data on peacekeeping contracts with PSMCs. This reshape of the website was a result of the “growing demand for transparent posting of real-time data such as Business Opportunities, Contract Awards and Procurement Statistics” (UNPD, 2014, July 3, par. 2).

3.1.2 Covering and downplaying United Nations’ role and responsibility

MONUC/MONUSCO’s role and responsibility during the mission was the implementation of the mission’s mandate. As several resolutions were developed during the mission, the mandate was revised several times. MONUC’s revised mandate in 2004, which reflects the period in which the UN started to contract PMSCs for the mission, was focused on the following key points:

“(a) to deploy and maintain a presence in the key areas of potential volatility in order to promote the re-establishment of confidence, to discourage violence, in particular by deterring the use of force to threaten the political process, and to allow United Nations personnel to operate freely, particularly in the Eastern part of the Democratic Republic of the Congo;

(b) to ensure the protection of civilians, including humanitarian personnel, under imminent threat of physical violence;

(c) to ensure the protection of United Nations personnel, facilities, installations and equipment;

(d) to ensure the security and freedom of movement of its personnel;

(e) to establish the necessary operational links with the United Nations Operation in Burundi (ONUB), and with the Governments of the Democratic Republic of the Congo and Burundi, in order to coordinate efforts towards monitoring and discouraging cross- border movements of combatants between the two countries;

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(f) to monitor the implementation of the measures imposed by paragraph 20 of resolution 1493 of 28 July 2003, including on the lakes, in cooperation with ONUB and, as appropriate, with the Governments concerned and with the group of experts referred to in paragraph 10 of resolution 1533 of 12 March 2004, including by inspecting, as it deems it necessary and without notice, the cargo of aircraft and of any transport vehicle using the ports, airports, airfields, military bases and border crossings in North and South Kivu and in Ituri;

(g) to seize or collect, as appropriate, arms and any related materiel whose presence in the territory of the Democratic Republic of the Congo violates the measures imposed by paragraph 20 of resolution 1493, and dispose of such arms and related materiel as appropriate;

(h) to observe and report in a timely manner, on the position of armed movements and groups, and the presence of foreign military forces in the key areas of volatility, especially by monitoring the use of landing strips and the borders, in particular on the lakes.” (UN Security Council, 2004, October 1, p. 2)

From this revised mandate of MONUC in 2004 it can be derived that some of the responsibilities of the mission were, at least partial, delegated to PSMCs. To wit, key points (c) and (d) of the UN Security Council (2004, October 1), the protection of UN personnel, facilities, installations and equipment and ensuring the security and freedom of movement of its personnel, are typical tasks that were outsourced to PSMCs during the missions. As demonstrated in Table 3 in Chapter 2.2, the PMSCs Human Dignity in The World, Magenya- protection & Gardiennage, KK Security Congo, and Delta Protection were contracted to provide security, safety and guard services in order to create safe and secure environments for MONUC and its UN premises, facilities and personnel. Moreover, PAE supported the mandate by ensuring the freedom of movement of MONUC’s personnel through aerodrome operations services.

When MONUC was changed in MONUSCO in 2010 by Resolution 1925, a new mandate was established that focused on the protection of civilians and stabilization and peace consolidation (UN Security Council, 2010, May 28). Again, one of the key points was to ensure the protection of UN personnel, facilities, installations and equipment. And again this responsibility was, at least partial, fulfilled by the PMSCs Magenya-protection & Gardiennage, Saracen Uganda,

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KK Security Congo, Top Sec International, Delta Protection, Askar Security Services Limited, and Societe Aigle Services as demonstrated in the analysis of Table 3 in Chapter 2.2. Furthermore, by deploying UAVs to provide aerial surveillance and intelligence services for force protection and protection of civilians, Selex ES was partly responsible for the call of the Security Council upon MONUSCO “to collect information on potential threats against the civilian population as well as reliable information on violations of international humanitarian and human rights law” (UN Security Council, 2010, May 28, p. 7).

Hence, during MONUC/MONUSCO the PMSCs did fulfil small parts of the role and responsibility of the UN in the mission by performing tasks to ensure the protection of UN personnel, facilities, installations, equipment and the security and freedom of movement of its personnel as demanded in the mission’s mandate. Additionally, Selex ES partly fulfilled the role of the UN to protect its forces and the civilians in the DRC and surrounding affected areas by gathering intelligence from the sky. Although the PMSCs were present in the conflict-area and were, sometimes indirectly, involved in the implementation of the mandate, the core-tasks of peacekeeping and therefore the fulfilment of the largest part of the mission’s mandate, remained assigned transparently to the UN peacekeepers themselves. In the end, the PMSCs only supported MONUC/MONUSCO’s peacekeeping forces in performing their role and responsibility as the PMSCs were assigned to support the mission in fulfilling only a small part of the mission’s mandate, mostly through non-core activities of peacekeeping such as protection of UN personnel and facilities. Covering or downplaying UN’s role and responsibility by contracting PMSCs for MONUC/MONUSCO can therefore not be noticed.

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