Right of peoples to self-determination 3 страница

V. Future activities

64. The Working Group will, during the coming year, pursue consultations with Member States to promote the widest ratification/accession of States to the International Convention.

65. With a view to obtaining invitations for future country visits, the Working Group will continue its consultations with the delegations of Afghanistan, Armenia, the Central African Republic, Chad, Colombia, Equatorial Guinea, Ghana, Iraq, Papua New Guinea, South Africa, the United States of America and Zimbabwe.

66. Within its mandate to develop new proposals on possible new standards, the Working Group has endorsed the proposal of the former Special Rapporteur on the question of the use of mercenaries (see A/60/263) to address fundamental questions concerning core actors in the monopoly of the use of force. It is of the opinion that States must make a clear distinction between those private companies which offer security services in strict compliance with imperative norms, regulations and accountability, such as respect for the principle of the State’s monopoly on the use of the force, and those recruiting, training, hiring or financing mercenaries to operate in zones of armed conflict, whose activities should be criminalized.

67. In this regard, the Working Group has recommended the holding of five regional governmental consultations followed by a high-level round table, convened under United Nations auspices, which would allow for high-level political and methodological consideration of the issues that would enhance awareness of the emerging issues, manifestations and trends regarding mercenary-related activities and their impact on human rights (A/61/341, paras. 93-94 and 102). The Working Group reiterates the pertinence of such a process, which would facilitate a critical understanding of the responsibilities of the different actors involved, including private military and security companies in the current context, as well as their respective obligations for the protection and promotion of human rights.

VI. Conclusions and recommendations

68. After two years of activities since its establishment. and after having carried out field missions to Chile, Ecuador, Fiji, Honduras and Peru and after having analysed the activities, at the international level, of a number of private companies that recruit, train, use or finance former military personnel and ex‑policemen from all regions of the world to operate in zones of armed conflict, the Working Group is of the opinion that many such manifestations are new modalities of mercenary-related activities.

69. The trend towards outsourcing and privatizing various military functions by a number of Member States in the past 10 years has resulted in the mushrooming of private military and security companies. Many such companies are the supply side for numerous contracts, for example with the Department of Defense or the State Department of the United States of America, with a resulting tremendous increase in the number of private military and private security companies connected with the conflict situations in Afghanistan and Iraq. In order to fulfil their contracts and at the same time make the most lucrative profits, some of these transnational companies have, through subsidiaries or hiring companies, created, stimulated and fuelled the demand in third world countries for former military personnel and ex‑policemen to be recruited as “security guards”, who in fact are private militarily armed soldiers. Once they are in the zones of armed conflict, the existence of provisions in national legislation granting immunity to private military and private security company personnel can easily become de facto impunity, with these private soldiers appearing only to be accountable to the company which employs them. Some Governments appear to consider these individuals neither civilians nor combatants, though heavily armed. They are new modalities of mercenarism, but could easily be associated with the unclear concept of “irregular combatants”. In many instances, these “private security guards” have encountered contractual irregularities, poor working conditions, a failure to satisfy basic needs and problems in obtaining financial compensation for injuries received. [13]

70. It was in this context that, in the questionnaire, following up the implementation of General Assembly resolution 61/151, the Working Group asked Member States whether they had adopted, were in the process of adopting or had considered for adoption in the future any measure to regulate the outsourcing of functions traditionally undertaken by members of the armed forces. Member States were also requested to specify which functions must not be performed by the private sector. The responses will inform the Working Group in its consideration of when and to what extent private military and private security company personnel can be considered agents of the State and under the effective authority and control of Governments. In this regard, the Working Group notes that States that employ private military and private security companies may incur responsibility for violations of internationally recognized human rights committed by their personnel that are attributable to those States in accordance with the international rules on State responsibility, in particular if the private military and private security companies are empowered to exercise elements of governmental authority or are acting under governmental direction or control.

71. The Working Group is concerned at the low level of ratification of and accession to the International Convention against the Recruitment, Use, Financing and Training of Mercenaries (30 States parties). Although this instrument has a number of loopholes, it is the only tool available at the global level that may allow control of the outsourcing of functions involving the use of violence which have been the monopoly of the State for centuries. It is for this reason that the Working Group encourages the eight Member States that have signed the Convention but have not yet ratified it to do so, and promotes accession by all other States that are not yet parties to the Convention.

72. The Working Group is also concerned at the lack of regulation at the regional and national levels regarding private military and security companies which operate without oversight and accountability. It believes that weak or insufficient domestic legislation, regulation and control of private military and private security companies encourage these transnational companies to seek to recruit former soldiers and ex-policemen from other countries as “security guards” in low-intensity armed conflicts. Because of the difficulty that war-torn States experience in regulating and controlling private military and private security companies, a significant part of the responsibility to regulate and control these companies falls on States from where these transnational companies export military and security services. The Working Group urges those exporting States to avoid granting immunity to private military and private security companies and their personnel. The Working Group is also concerned that, in spite of it having been drawn to the attention of Governments, including in some of the countries in which the Working Group has carried out field missions, the recruitment of former military personnel and ex-policemen by private military and private security companies to employ them as “security guards” in zones of armed conflict such as Iraq seems to be continuing.

73. The Working Group therefore:

(a) Calls upon all States that have not yet done so to consider taking the necessary action to accede to or ratify the International Convention against the Recruitment, Use, Financing and Training of Mercenaries and to incorporate relevant legal norms in their national legislation. In this context, the Working Group considers that a model law could be elaborated with a view to facilitating accession of those States that wish to become parties to the Convention, by indicating the steps to be taken in order to incorporate international norms into domestic legislation;

(b) Recommends that regional and other intergovernmental organizations, in particular the European Union, elaborate a common system to regulate private military and security companies exporting their services abroad;

(c) Encourages States to incorporate in domestic law relevant international legislation on these issues, as well as relevant regional legislation where regional frameworks exist (for example, the African Union, the Economic Community of West African States and the Commonwealth of Independent States);

(d) Recommends that, in order to ensure that the military assistance, consultancy and security services offered by private companies at the international level neither impede the enjoyment of nor violate human rights, Governments of States from which these private companies export such services adopt legislation and set up regulatory mechanisms to control and monitor their activities, including a system of registering and licensing that would authorize these companies to operate and allow them to be sanctioned when the norms are not respected;

(e) Encourages Governments that import the military assistance, consultancy and security services provided by private companies to establish regulatory mechanisms for the registering and licensing of these companies in order to ensure that imported services provided by these private companies neither impede the enjoyment of human rights nor violate human rights in the recipient country;

(f) Encourages Governments, when establishing such regulatory systems of registration and licensing of private military and private security companies and individuals working for them, to determine minimum requirements for the obligatory transparency and accountability of firms, provide for the background screening and vetting of private military and private security company personnel, ensure adequate training of such personnel on international human rights and international humanitarian law, as well as rules of engagement consistent with applicable law and international standards, and establish effective complaint and monitoring systems, including parliamentary oversight. Such regulatory systems should include thresholds of permissible activity. States should impose a specific ban on private military and private security companies intervening in internal or international armed conflicts or actions aiming at destabilizing constitutional regimes;

(g) Encourages States from which former military personnel and ex‑policemen are being recruited by private security companies in order to send them to zones of low-intensity armed conflict or post-conflict situations to take the necessary measures to prevent such mercenary recruitment and to issue public statements and apply policies aimed at discouraging those practices;

(h) Recommends that United Nations departments, offices, organizations, programmes and funds establish an effective selection and vetting system and guidelines containing pertinent criteria aimed at regulating and monitoring the activities of private security and military companies working under their respective authority. They should also require and ensure that the said guidelines comply with human rights standards and international humanitarian law. In particular, they should require that the personnel employed by private military and private security companies have not been involved in human rights abuses;

(i) Supports the recommendation of the former Special Rapporteur on mercenaries (see A/60/263) that a high-level round table, preceded by five regional governmental consultations, be convened under the auspices of the United Nations to discuss the fundamental question of the role of the State as holder of the monopoly on the use of force. Such meetings will facilitate a critical understanding of the responsibilities of the various actors, including private military and security companies, in the current context, and their respective obligations for the protection and promotion of human rights. They will also serve as a forum for discussion to arrive at a common understanding as to which additional regulations and controls are needed at the international level;

(j) Requests the General Assembly to increase accordingly the budget allocated for the Working Group in order to meet the demands of its future activities.

Annex

Status of the International Convention against the Recruitment, Use, Financing and Training of Mercenaries as at 16 August 2007

State	Signature, succession to signature (a)	Ratification, accession (b)
Angola	28 December 1990
Azerbaijan		4 December 1997 b
Barbados		10 July 1992 b
Belarus	13 December 1990	28 May 1997
Belgium		31 May 2002 b
Cameroon	21 December 1990	26 January 1996
Congo	20 June 1990
Costa Rica		20 September 2001 b
Croatia		27 March 2000 b
Cuba		9 February 2007 b
Cyprus		8 July 1993 b
Democratic Republic of the Congo	20 March 1990
Georgia		8 June 1995 b
Germany	20 December 1990
Guinea		18 July 2003 b
Italy	5 February 1990	21 August 1995
Liberia		16 September 2005 b
Libyan Arab Jamahiriya		22 September 2000 b
Maldives	17 July 1990	11 September 1991
Mali		12 April 2002 b
Mauritania		9 February 1998 b
Moldova		28 February 2006 b
Montenegro	23 October 2006^a
Morocco	5 October 1990
New Zealand		22 September 2004 b
Nigeria	4 April 1990
Peru		23 March 2007 b
Poland	28 December 1990
Qatar		26 March 1999 b
Romania	17 December 1990
Saudi Arabia		14 April 1997 b
Senegal		9 June 1999 b
Serbia	12 March 2001^a
Seychelles		12 March 1990 b
Suriname	27 February 1990	10 August 1990
Togo		25 February 1991 b
Turkmenistan		18 September 1996 b
Ukraine	21 September 1990	13 September 1993
Uruguay	20 November 1990	14 July 1999
Uzbekistan		19 January 1998 b

[1] Available from the website of the Office of the United Nations High Commissioner for Human Rights (www.unhchr.ch).

[2] The Government of Honduras submitted its comments on the report; see document A/HRC/4/G/6.

[3] The Government of Ecuador submitted its comments on the report; see document A/HRC/4/G/9.

[4] See press release dated 5 February 2007 at the website of the United Nations High Commissioner for Human Rights at www.unhchr.ch.

[5] See press release dated 18 May 2007 at www.unhchr.ch.

[6] See press release dated 14 July 2007 at www.unhchr.ch.

[7] In a letter dated 19 April 2007, the Government of Iraq stated that “the security situation in Iraq would not allow the Working Group to do their work in an effective manner”.

[8] For a summary of the meeting, see www.reports-and-materials.org/Ruggie-special-procedures-19-Jun-2007.pdf.

[9] The workshop produced the Lund Statement, which was issued as Human Rights Council document A/HRC/5/18.

[10] For a summary note by the Business and Human Rights Resource Centre, see www.business-humanrights.org/Links/Repository/978963/jump.

[11] See also the report of the Swiss Federal Council on private security and military companies of 2 December 2005, available from the website www.eda.admin.ch.

[12] For documentation on the Swiss Initiative, see the website www.eda.admin.ch/psc.

[13] A/HRC/4/42, paras. 49-50, and A/HRC/4/42/Add.1, para. 19.

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