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Right of peoples to self-determination 2 страница




26. The comprehensive report of the mission, including its conclusions and recommendations, will be presented to the Human Rights Council at its fifteenth session. However, the present section provides an overview of its preliminary observations expressed upon the completion of the visit.

27. During the visit, the Working Group met with the Office of the President, Ministries of Foreign Affairs, Justice, Interior and Defence, as well as the chairs and members of the Committee on Legislative Affairs of the Wolesi Jirga, and the Committee on Internal Security, National Security and Local Organs of Power of the Meshrano Jirga. The Group also had the opportunity to meet with representatives of the Afghan Independent Human Rights Commission and heard the views of civil society and representatives of the private military and security companies. Meetings were also held with representatives of the international community, as well as the United Nations Assistance Mission in Afghanistan and specialized agencies. In its visit to Jalalabad, the Working Group met with the Provincial Governor and other local authorities.

28. The Working Group commended the Government of Afghanistan for the enactment of a specific regulation on national and international private security companies operating in the country. Afghanistan is among the few countries where there is specific legislation on the issue. The regulation, which was adopted in February 2008, has led to the licensing of 39 Afghan and foreign companies and the registration of their personnel and weapons. The Working Group was informed that companies which were not licensed through this process had to cease their activities accordingly or would otherwise be considered as illegal armed groups. The Government was not able to confirm whether those companies that had not obtained a licence had indeed ceased their operations in the country or if they were still operating illegally. The Working Group expressed concern at this lack of oversight and adequate sanction for those companies possibly operating illegally in some part of the country.

29. The Working Group met with several international and local NGOs. The vast majority of them stressed that the high presence of armed private guards did not generate a feeling of increased security for the Afghan population and that, to the contrary, the high number of armed individuals, vehicles and weapons created a feeling of fear and insecurity. Most NGOs pointed to the difficulty for Afghan citizens to distinguish between international troops and international or local security contractors. This, they said, complicated the process to report accurately incidents and human rights violations. The Working Group was informed about criminal offences committed by private security contractors but, despite several accounts that human rights violations had occurred, it could not obtain documented and verifiable evidence of those violations. The Working Group would recommend the setting up of a central mechanism for individuals and private security contractors to report serious incidents involving casualties committed by private security contractors and ensure proper investigation and access for remedy for the victims.

30. During the Working Group’s visit to the country, the Ministry of Justice introduced in Parliament a draft law on private security companies. The Working Group did not receive a copy of the law but understands that the language of the new law reflects the wording of the regulation. The Working Group is of the general view that legislation, which would ensure oversight and monitoring by the State of private security companies, as well as their accountability, is a positive development. The law should ensure full protection of human rights and ensure that victims enjoy an effective remedy. The Working Group recommended the speedy adoption of new legislation following a broad consultative process and adequate awareness campaign. The Government should also take all steps necessary to ensure the full implementation of the new law.

31. The Working Group reiterated the fundamental principle of the control of the State over the legitimate use of force. The State should retain control and oversight over the legal use of force, which should not be outsourced to non-State actors without exercising proper control. In that regard, the Working Group welcomed the expressed willingness of the Government of Afghanistan to gradually increase the capacity and training of the State army, police and security forces in order to ensure the safety and security of its population and of the international community present in its territory, while ensuring respect for the rule of law and human rights.

 

 

B. Visit to the United States of America

 

 

32. The Working Group recently conducted a two-week visit to the United States. The Working Group held meetings in Washington, D.C., with senior Government officials, a member of Congress and senior staff of members of Congress and Committees, academics, experts and representatives of civil society and the private security industry. It also met with several civil society organizations in New York.

33. The purpose of the visit was to obtain direct and first-hand information on the use of private military and security contractors by the United States Government abroad as well as on the governmental policy and legal framework, and the regulatory and oversight system in place to monitor the impact of the activities of private military and security companies on human rights and ensure accountability for human rights violations. In June 2009, some 240,000 private sector employees were supporting United States military operations in Iraq and Afghanistan with additional contractors working for the United States Department of State and the United States Agency for International Development.

34. The tragic events of 16 September 2007 in Nisoor Square in Baghdad, in which employees of Blackwater opened fire, killing 17 and injuring more than 20 civilians, prompted more attention to the need for oversight and accountability of private military and security companies, at both the national and international levels. On 25 September 2007, the Working Group sent an allegation letter to the United States Government on this incident (see A/HRC/10/14/Add.1).

35. The Working Group is pleased that the United States Government has since taken serious corrective actions. It welcomes the recent adoption by the United States authorities of legislation and regulations aimed at strengthening further the oversight and accountability of private military and security companies, such as Section 862 of the National Defense Authorization Act of 28 January 2008 and the Department of Defense “Interim Finale Rule” of 17 July 2009.

36. The most significant development towards the end of impunity for United States security contractors has been undoubtedly the termination of the Coalition Provisional Authority Order 17, which provided immunity to contractors contracted by the United States. The new status of forces agreement, which entered into force on 1 January 2009, provides that “members of the United States Forces and of the civilian component will respect Iraqi laws, customs, traditions and conventions”.[6] The Working Group welcomes the adoption of the new status of forces agreement, which has put an end to a situation that should have never been allowed. In carrying out their activities, private military and security companies and their personnel should be obliged to comply with international humanitarian law and human rights law and to abide by relevant national laws. The Working Group was assured by Government officials of the United States that the Government would not contract with companies whose personnel had been convicted of human rights violations or criminal offences.

37. The Working Group presented a list of preliminary recommendations at the end of its visit, including a call for the adoption of a comprehensive legislation for all contractors and civilian employees, including more transparency in contracting with companies by the intelligence agencies; the strengthening of the Department of Justice investigative resource capacity and the appointment of an independent prosecutor for prosecuting cases of human rights violations and criminal offences committed by individuals or companies contracted to the United States Government; the publication of statistical information on cases of human rights violations committed by private military and security companies that are being investigated as well as on the number of private military and security contractors injured or killed while supporting United States operations; the provision of greater transparency and freedom of information on private military and security companies operating under United States contracts; the establishment of a system of federal licensing of private military and security companies and a vetting procedure; the launching by Congress of an investigation into the use of private military and security companies for rendition flights; and, finally, ensuring the right of all victims to an effective remedy and swift access to justice in the appropriate jurisdiction.

38. The comprehensive report of the mission, including its conclusions and recommendations, will be presented to the Human Rights Council at its fifteenth session.

 

 

C. Follow-up to visits

 

 

39. The Working Group held meetings with representatives of the Governments of Honduras and Ecuador in December 2008 and the Government of Peru in April 2009 to discuss the follow-up to the recommendations made in its reports following its visits to these countries.

40. In April 2009, the Foreign and Commonwealth Office of the United Kingdom launched a consultation process on a governmental proposal to introduce a package of measures to improve standards in the private military and security industry in the United Kingdom and worldwide.[7] In its document, the Government explained that it rejected the options of licensing activities or companies on the ground that, among other things, there was no suitable enforcement authority that could effectively investigate violations and that a Government-approved register of companies would be difficult to create, maintain and use effectively. The package of measures recommended by the Government combined a self-regulation initiative through the trade association with an international approach to promote higher global standards. The trade association would take the lead in drafting a code of conduct based on high national standards and would have responsibility to enforce it. The Government would use its leverage as buyer to pressure private military and security companies to adhere to and observe the code. The Government would extend international cooperation by building on the Montreux Document and advocating an extension of the initiative to create internationally agreed standards for companies. The Government would also support the establishment of an effective impartial and transparent complaint mechanism.

41. In its letter dated 15 July 2009 to the Foreign and Commonwealth Office of the United Kingdom, the Working Group welcomed this initiative of the United Kingdom Government geared towards improving standards for private military and security companies. In its report of 19 February 2009 following its visit to the United Kingdom (A/HRC/10/Add.2), the Working Group recommended to the Government to make public the results of the 2005 Review of the United Kingdom Green Paper on the regulation of private military and security companies, or to undertake a new review, and to conduct a comprehensive discussion between the concerned bodies on the options for regulation. The Working Group considers the recent consultation as a positive step in this regard.

42. While the Working Group recognizes that the self-regulatory option through the trade associations recommended by the Government envisions enforcement, monitoring and sanctions mechanisms, it regrets that the Government did not consider the legislative option as a valid option for the United Kingdom.

43. The Working Group reiterated its recommendations included in its report of the visit to the United Kingdom (ibid.) and specifically in paragraph 41 of the report, where it highlighted a set of basic principles, which included the identification by the Government of activities that under no circumstances could be outsourced to private military and security companies; a registration system of private military and security companies with minimum transparency requirements; a licensing system of private military and security companies that would include an adequate vetting system; an external complaint mechanism open to individuals, State agencies, foreign Governments and other companies to ensure criminal responsibility of individuals and civil liability of the companies; and a monitoring system of oversight of the activities of private military and security companies by the Parliament.

 

 

D. Other missions in preparation

 

 

44. By a letter dated 12 January 2009, the Working Group has been extended an invitation to visit the Sudan. The Working Group is currently considering possible dates for a visit to the Sudan as well as to Equatorial Guinea, whose authorities expressed their readiness to receive the Working Group. The Democratic Republic of the Congo expressed its verbal acceptance should the Working Group envision a mission in the country in 2010. The Working Group is also considering other possible country visits on the basis of the most recent information received on mercenaries or activities of private military and security companies.

 

 

IV. Regional consultations

 

 

45. The Working Group convened its second regional consultation for Eastern European and Central Asian countries from 17 to 18 October 2008, in Moscow (see A/HRC/10/14/Add.3).

46. This regional consultation was organized pursuant to paragraph 15 of General Assembly resolution 62/145, by which the Assembly expressed its appreciation to the Office of the High Commissioner for its support for convening in Panama the regional governmental consultation for Latin American and Caribbean States, and requested the Office of the High Commissioner to convene other regional governmental consultations on traditional and new forms of mercenary activities as a means of violating human rights and impeding the exercise of the right of peoples to self-determination, in particular regarding the effects of the activities of private military and security companies on the enjoyment of human rights.

47. The consultation sought to gain a regional perspective about the current practices related to mercenaries and private military and security companies registered, operating or recruiting personnel in the region. It also provided an opportunity to discuss the fundamental question of the role of the State as holder of the monopoly of the legitimate use of force and to share information on steps taken by States in the region to introduce legislation and other measures to regulate and monitor activities of private military and security companies on the international market. The participants discussed general guidelines, norms and basic principles for the regulation and oversight of the activities of private military and security companies to encourage the further protection of human rights.

48. The consultation was attended by representatives of the Governments of Armenia, Bosnia and Herzegovina, Kyrgyzstan, Lithuania, Poland, the Republic of Moldova, the Russian Federation, Serbia, Slovenia, Tajikistan and Ukraine. Also attending were representatives from the Collective Security Treaty Organization, ICRC, the United Nations and civil society, academics and a representative from a private military and security company.

49. The Working Group observed that the private military and security industry was expanding globally, and underlined that the rapid rate of this growth had shifted the discussion from whether non-State actors should be allowed to use force to how they should use such force. In accordance with General Assembly resolution 62/145, the Working Group stated its belief that it was essential to actively pursue the debate on the fundamental question on the role of the State as holder of the monopoly of the legitimate use of force.

50. The Working Group reiterated its conclusion that legal codification of the comprehensive system of oversight and regulation for the private military and security industry should be based upon certain identified principles presented in the previous report to the General Assembly (A/63/325, para. 90). The Working Group also stressed the importance of developing an effective system for the licensing of the private military and security industry and the training of its employees as well as an effective vetting system for the selection of employees of private military and security companies. The Working Group presented its view of a comprehensive regulatory framework that would include international and regional binding agreements containing internal petitionary or complaints mechanisms, national legislation and policy, parliamentary control and oversight, self-regulation by the industry itself and independent monitoring by civil society institutions.

51. The draft text of a possible convention on regulating private military and security companies prepared by Russian experts as well as the findings of a model law project[8] by the School of Law at the University of Wisconsin-Madison were presented to the participants.

52. The Working Group plans to hold regional consultations for the Asia region in October 2009 and for Africa and Western Europe in 2010 to discuss the impact of traditional forms of mercenary activities as well as activities of private military and security companies on the enjoyment of human rights. The Working Group thanks the Governments of Thailand and Spain for offering to host these consultations.

 

 

V. Communications

 

 

53. The Working Group continues to receive information from Governments, NGOs and individuals concerning situations involving mercenaries, mercenary-related activities as well as allegations of human rights violations by private military and security companies. During the year under review, communications were sent to the Plurinational State of Bolivia, Croatia, Hungary, Israel, Ireland, Peru and Romania. The Working Group would like to thank the Governments of the Plurinational State of Bolivia, Hungary, Croatia, Romania and Ireland for their prompt replies to its communications. The communications and summaries of responses received from Governments will be reflected in the report of the Working Group to the Human Rights Council at its fifteenth session.

54. The Working Group reiterates its interest in receiving responses from the Governments concerned in regard to allegations submitted and considers response to its communications as an important part of the cooperation of Governments with its mandate.

 

VI. Future activities

 

 

55. The United Nations Working Group will continue its efforts towards building consensus for a possible international draft convention on private military and security companies. The Working Group began its consultations with intergovernmental and non-governmental organizations, academic institutions and experts in July. To this date, the Working Group has sent the draft convention for consultation to some 250 experts.

56. From September to December 2009, the Working Group will review comments from intergovernmental, NGOs, academic institutions and experts and will adapt and consolidate its draft convention accordingly. In accordance with paragraph 13 (b) of Human Rights Council resolution 10/11, the Working Group will subsequently share with Member States, through the Office of the United Nations High Commissioner for Human Rights, elements for a possible draft convention on private military and security companies, requesting their input on the content and scope of such a convention and to transmit their replies to the Working Group. The Council requested the Working Group to report to it at its fifteenth session on the progress achieved in the elaboration of the draft legal instrument for proper consideration and action.

57. The Working Group will also pursue its efforts to elaborate an accompanying Model Law that would assist countries that are engaged in drafting national legislation on the regulation of private military and security companies.

58. In addition and pursuant to Human Rights Council resolution 7/21, from 26 to 28 October 2009, the Working Group will convene a regional consultation for Asia in Bangkok on the topic “Traditional and new forms of mercenary activities as a means of violating human rights and impeding the exercise of the right of peoples to self-determination, in particular regarding the effects of the activities of private military and security companies on the enjoyment of human rights”. The Working Group would like to thank the Government of Thailand for hosting this regional consultation.

59. The Working Group will also pursue its preparation for the regional consultation for Africa. From 13 to 15 October 2010, the last regional consultation will be held in Madrid for the Western European and Others Group. The Working Group would like to express its gratitude to the Government of Spain for hosting the regional consultations for Western Europe.

60. The Working Group will pursue consultations with Member States to promote the widest ratification and accession of States to the 1989 International Convention against the Recruitment, Use, Financing and Training of Mercenaries.

 

 

VII. Conclusions and recommendations

 

 

61. The Working Group recommends that the approach of the international community to private military and security companies should imply greater State responsibility for the activities of private military and security companies worldwide, including responsibility for where and how they operate and their impact on the full enjoyment of human rights. Governments should devise national and international mechanisms to monitor abuses and violations of human rights and international humanitarian law and ensure that victims have access to appropriate remedies. The Working Group also urges Governments to end all existing agreements that confer immunity from prosecution for criminal offences and human rights violations to private military and security companies.

62. In addition to monitoring mechanisms, a complaint mechanism open to individuals, State agencies, foreign Governments and other companies and entities should be established to provide an avenue for victims to be heard and a means to request information from the concerned Government and, where necessary, seeking preventive, investigatory or remedial action. The Working Group believes that, in addition to complaint mechanisms at the national level, the international community should set up an international independent complaints procedure. The Working Group envisioned such a mechanism in its draft convention.

63. The Working Group welcomes the ongoing debate in some countries, notably in the United States, on the definition of what constitutes inherently governmental functions that under no circumstances could be outsourced by the State to the private sector. The Working Group believes that there are certain functions, including participation in direct hostilities, the handling and detainment of prisoners of war, civilian internees, terrorists, and others defined under international humanitarian law, the direction and control of intelligence interrogations and intelligence gathering and analysis as well as certain law enforcement functions that cannot, under international law, be outsourced. National legislation on the private military and security industry should clearly specify the types of activities prohibited for nationally registered companies, including mercenary-related activities or participating in overthrowing legitimate Governments and political authorities; both of these activities are banned by the International Convention against the Recruitment, Use, Financing and Training of Mercenaries. The Working Group is proposing a definition of fundamental State functions that cannot be outsourced, in its draft convention for consideration by Member States.

64. The Working Group is concerned by the lack of effective parliamentarian and public scrutiny on the scope and type of contracts allocated to private military and security companies, given the lack of transparency on the type of contractual arrangements between Governments and private military and security companies. The Working Group calls for further transparency and freedom of information on the number of such companies operating in conflict or post-conflict zones, information on the companies, number and nationality of personnel, casualties, number and types of weapons and vehicles as well as on the activities for which they are contracted, to be provided pursuant to legitimate limitations posed by national security and privacy.

65. In line with the mandate it has been given by both the General Assembly and Human Rights Council to make recommendations regarding the creation of new legal instruments to fill the gaps in existing legislation, the Working Group has prepared a draft of a possible new international convention on the regulation, oversight and monitoring of private military and security companies referred to above. Pursuant to paragraph 13 (b) of Human Rights Council resolution 10/11, the Working Group will share with Member States, through the Office of the United Nations High Commissioner for Human Rights, this draft convention, requesting their input on the content and scope of such a convention. The Working Group expects to disseminate the draft convention in the first trimester of 2010 to all States Members of the United Nations and invites them to provide their input on the content and scope of such a convention.

66. The Working Group notes with appreciation that over the course of 2008, two additional States became party to the International Convention against the Recruitment, Use, Financing and Training of Mercenaries, bringing the total number of States parties to 32. The Working Group commends the Governments of Honduras and of the Syrian Arab Republic for their ratification and reiterates its appeal to all Member States to ratify the Convention, as it remains an important international legal instrument for the prevention of the use of mercenaries as a means of violating human rights and the rights of people to self-determination.

67. The Working Group expresses its appreciation to all Member States, departments, programmes, bodies and agencies of the United Nations, including experts and non-governmental organizations, which assisted it in the fulfilment of its mandate.


Annex

Status of the International Convention against the Recruitment, Use, Financing and Training of Mercenaries as at 2 July 2009

 

 

  a Available from http://treaties.un.org (accessed on 2 July 2009).

The International Convention against the recruitment, use, financing and training of mercenaries was adopted by the General Assembly in its resolution 44/34 on 4 December 1989, and entered into force on 20 October 2001.a The status of the 1989 International Convention as at 2 July 2009, with 17 signatories and 32 State parties, is presented below. Reservations are not reflected in the present annex.

 

State Signature, succession to signature (a) Ratification, accession (b)
     
Angola 28 December 1990  
Azerbaijan   4 December 1997b
Barbados   10 July 1992b
Belarus 13 December 1990 28 May 1997
Belgium   31 May 2002b
Cameroon 21 December 1990 26 January 1996
Congo 20 June 1990  
Costa Rica   20 September 2001b
Croatia   27 March 2000b
Cuba   9 February 2007b
Cyprus   8 July 1993b
Democratic Republic of the Congo 20 March 1990  
Georgia   8 June 1995b
Germany 20 December 1990  
Guinea   18 July 2003b
Honduras   1 April 2008b
Italy 5 February 1990 21 August 1995
Liberia   16 September 2005b
Libyan Arab Jamahiriya   22 September 2000b
Maldives 17 July 1990 11 September 1991
Mali   12 April 2002b
Mauritania   9 February 1998b
Montenegro 23 October 2006a  
Morocco 5 October 1990  
New Zealand   22 September 2004b
Nigeria 4 April 1990  
Peru   23 March 2007b
Poland 28 December 1990  
Qatar   26 March 1999b
Republic of Moldova   28 February 2006b
Romania 17 December 1990  
Saudi Arabia   14 April 1997b
Senegal   9 June 1999b
Serbia 12 March 2001a  
Seychelles   12 March 1990b
Suriname 27 February 1990 10 August 1990
Syrian Arab Republic   23 October 2008b
Togo   25 February 1991b
Turkmenistan   18 September 1996b
Ukraine 21 September 1990 13 September 1993
Uruguay 20 November 1990 14 July 1999
Uzbekistan   19 January 1998b

 




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