There is therefore no single treaty provision to measure the possibility of deploying PMSCs as troops and in other roles in United Nations peacekeeping operations. On the one hand, the principles of peacekeeping – consent, impartiality and the “limited” use of force – play an essential role in ensuring the legality of a peace operation that is not enshrined in Chapter VII of the Charter of the United Nations. On the other hand, the mandate itself, the status of forces between the United Nations and the host State, and arrangements between the United Nations and troop- and police-contributing States can contribute to the technical legal basis for the presence of force in a State. It is also important to understand the legal basis for police operations, given that the only context in which PMSCs are mandated by a State to recruit, deploy and manage peacekeepers is that of United Nations civilian police. Footnote 7 Overall, police operations in UN peacekeeping operations follow the same framework as military and civilian operations for the remainder of the operation. Footnote 8 The specific rules of the force itself are the result of a combination of the United Nations Security Council resolution defining the mandate of the operation, international law, law of the police state and the laws of the host state. Footnote 9 This brief overview, which describes how UN peacekeeping operations are established and staffed, provides context on how private military and security personnel can participate in an operation. The fact that the main parties have given their consent to the deployment of a United Nations peacekeeping operation does not necessarily mean or guarantee that there will also be an agreement at the local level, particularly if the main parties are internally divided or have weak command and control systems. Universality of consent becomes even less likely in volatile environments characterized by the presence of armed groups that are not under the control of either party or by the presence of other spoilers. Although there is no black letter rule prohibiting the use of PMSCs in peacekeeping operations, particularly as a contingent of troops themselves, the use of PMSCs must be able to address all aspects of this framework if their use is to be considered.
All these internal principles, policies and guidelines must also be considered in the context of general international law, including international human rights law, and in particular international humanitarian law, when applied to United Nations peacekeeping operations. This rather nebulous framework thus sets the stage for the method used in this section to test the possibility of using PMSCs as military or police contingents in peacekeeping operations. 21 See Standing Police Capacity on the United Nations Department of Peacekeeping Operations website: www.un.org/en/peacekeeping/sites/police/capacity.shtml (accessed November 14, 2011). The High-level Panel on Threats, Challenges and Change had called for the creation of a capacity of 50 to 100 officers, which was approved by the UN General Assembly, but in the end, UN member states approved only 25. Footnote ibid. UN Security Council Resolution 2185 (2014) underlines the central role and multiple functions increasingly entrusted to civilian police. UN peacekeeping missions are deployed with the consent of the main parties to the conflict. This requires the commitment of the parties to a political process.
Its consent to a peacekeeping operation gives the United Nations the political and physical freedom to carry out the tasks entrusted to it. Without such consent, a peacekeeping operation risks becoming a party to the conflict; and to be attracted to coercive measures and to move away from their fundamental peacekeeping role. It is important that MILOBS and peacekeepers from all countries – be they military, UN police or civilians – understand and respect the legal framework for UN peacekeeping operations in order to ensure the successful implementation of the mission`s mandate. This lesson provides background information on this legal framework, including the process by which the United Nations launches an operation; the principles and laws that govern them; documents providing legal advice; and its impact on UN peacekeepers. A United Nations peacekeeping operation should use force only as a last resort. It should always be calibrated accurately, proportionately and appropriately, in accordance with the principle of minimum force required to achieve the desired effect, while maintaining approval of the mission and its mandate. The use of force by a UN peacekeeping operation always has political implications and can often lead to unforeseen circumstances. Nothing in the legal basis for peace operations or in the basic documents establishing peace operations therefore appears prima facie to prohibit the use of PMSCs in various functions. Since they do not provide for a general prohibition, the possibility of using them would depend on the specific conditions of the agreements. Peacekeeping is one of the most effective instruments available to the United Nations in promoting and maintaining international peace and security.
A4P is the core of what we do and a driver of change that permeates all aspects of UN peacekeeping. Status of Armed Forces agreements between the United Nations and the host State in which the peacekeeping operation operates are also part of the legal framework. In addition to the guidelines described above, the work of the United Nations Office of Legal Affairs on the status of forces (SOFA) and contractors shows that the United Nations is tolerant of PMSCs in peace operations and illustrates the potential limitations of their use. The starting point for any discussion of the legal framework for United Nations peacekeeping operations is that the authority to conduct or establish such operations is nowhere to be found in the Charter of the United Nations. On the contrary, the legal basis for peacekeeping is most often found in the implicit powers of the organization. Footnote 1 One researcher argues that this can be interpreted as an interim measure under section 40, footnote 2, while Christine Gray argues that “the debate does not appear to have any practical significance.” Footnote 3 This means, however, that the rules specific to peace operations are not set out in the Charter; On the contrary, they have evolved over the past six decades thanks to the doctrine of peacekeeping. Footnote 4 Most UN peacekeeping operations are established by a Security Council resolution – sometimes under Chapter VII (or in part), but often no chapter or article is indicated.