Right of peoples to self-determination 1 страница

Use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination

Note by the Secretary-General

The Secretary-General has the honour to transmit to the members of the General Assembly, in accordance with Commission on Human Rights resolution 2005/2, the report of the Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination.

Report of the Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination

Summary

The present report addresses the challenges stemming from the use of private military and security companies and their impact on the enjoyment of human rights. It discusses the trend towards increasing privatization of security and its underlying consequences and points to a growing dependency of some States on private military and security companies. It also reports on challenges regarding the accountability of private military and security companies and their personnel.

The report also presents an overview of the activities carried out by the Working Group during the period under review, including its three regular sessions and the three regional consultations it held (for Asia and the Pacific, Africa and Western European and others Group) on traditional and new forms of mercenary activities. The report provides a brief overview of the United Nations policy vis‑а‑vis the use of private security contractors and information on the progress achieved in the elaboration of a possible draft convention on private military and security companies. The main elements of such a possible draft convention are contained in the annex for the consideration of Member States.

Contents

			Page
I. Introduction..................................................................
II. Update on recent activities of mercenaries and private military and security companies and the issue of accountability
A. Increased “dependency” on private military and security contractors
B. Privatization of security.....................................................
C. Lack of accountability of mercenaries, private military and security companies and their personnel................................................................
1. Immunity agreements..................................................
2. Prosecutions of private military and security companies and their personnel
3. Prosecutions and punishment of mercenaries.................................
D. Contracting and use of private military and security companies by the United Nations
III. Activities of the Working Group
A. Regional consultations......................................................
B. Country visits.............................................................
C. Communications..........................................................
IV. Progress achieved in the elaboration of a possible draft convention on private military and security companies
V. Conclusions and recommendations.................................................
Annex
Elements of a proposed draft convention on private military and security companies

I. Introduction

1. Pursuant to its mandate, the Working Group has continued to monitor mercenaries and mercenary-related activities in all their forms and manifestations, as well as to study the effects on the enjoyment of human rights of the activities of private companies offering military assistance, consultancy and security services on the international market.

2. The Working Group found that the trend towards extensive privatization of security is intensifying, while the private security industry, and in particular the export/import of private security services, remains fundamentally unregulated at the international level and often insufficiently regulated at the national level. The United States of America and the United Kingdom of Great Britain and Northern Ireland continue to be the lead suppliers as well as primary contractors of private military and security companies, mainly to support their presence in Iraq and Afghanistan. In addition to international companies, local private military and security companies are also proliferating on national markets in all parts of the world. Private military and security companies continue to provide a wide range of services, including personnel protection, site security and convoy security for military and civilian personnel working for international institutions, Governments or private entities, as well as policing and security protection services, intelligence data collection and analysis, private administration of prisons, interrogation of detainees and reportedly covert operations.

3. The Working Group continues to observe a lack of transparency regarding the activities carried out by these companies and remains concerned about the lack of accountability of these companies and their personnel for human rights abuses as well as with their overall impact on the enjoyment of human rights.

4. The Working Group focused its work during the reporting period on the elaboration of a draft of a possible new international convention on the regulation, monitoring and oversight of private military and security companies, which it believes would help distinguish the activities that could legally be carried out by such companies according to international law from the activities that should remain inherently State functions and could not under any circumstances be outsourced. The new legal instrument would establish minimum international standards for States parties to regulate the activities of private military and security companies and their personnel and provides for a monitoring mechanism at the level of the United Nations. The elements and key provisions of the proposed draft convention as prepared by the Working Group are available in the annex to the present report for the consideration of Member States.

II. Update on recent activities of mercenaries and private military and security companies and the issue
of accountability

5. The Working Group continued to collect information regarding the activities of mercenaries and private military and security companies around the world. It observed that the trend towards increasing privatization of security in many parts of the world was intensifying. In addition to the extensive use of international private military and security companies in conflict situations like in Afghanistan and Iraq, the privatization of security has also been occurring at the national level, with the risk of security becoming a commodity that only the rich would be able to afford and the risk of having a lack of accountability and responsibility on the part of such private actors. The Working Group is concerned that with the trend towards the erosion of the State monopoly of the legitimate use of force, the State is evading its duty to provide security for all its citizens equally.

A. Increased “dependency” on private military and
security contractors

6. Many States are increasingly relying on private military and security contractors in the performance of military and security functions, which, until recently, had been performed by Government officials.

7. For instance, a two-year study of the United States intelligence community by The Washington Post [1] published on 19, 20 and 21 July 2010 found that contractors, and in particular military and security contractors, were playing a key role in intelligence activities in the United States. The study concluded that the Government of the United States had developed a “dependency” on private contractors, raising the question as to whether the Government was still in control of its most sensitive activities.

8. The Washington Post description of the wide range of activities[2] in which private contractors are involved demonstrates the extent of their involvement in performing functions, which, until now, had been performed by Government officials and could fall under the category of “inherently State functions”.

9. Some private military and security companies have grown so powerful, in terms of the military equipment they possess and the expertise they have developed that they have become an indispensable partner in the military and security activities of some Governments. The Working Group is concerned that this dependency may lead to a situation where such partnership may become predominant over the consideration of the past human rights records of the companies. As stated by Leon Panetta, current director of the Central Intelligence Agency, contracting with corporations whose responsibility is to their shareholders does present “an inherent conflict”.[3]

10. For instance, in June 2010, the Government of the United States granted the private military and security company Blackwater/Xe new contracts worth about $220 million to protect United States Government facilities in Afghanistan and elsewhere and to provide protective services to the CIA. At the same time, the company is facing several lawsuits, including one criminal suit brought by the Government of the United States against five employees of the company in relation to the company’s involvement in the killing of 17 civilians in Nisoor Square, Baghdad, in September 2007.[4]

11. Granting lucrative contracts to companies that have not demonstrated any interest in promoting high operational and ethical standards in their work is also in contradiction with the stated commitment of the Government of the United States to work towards a global code of conduct for the respect of human rights and international humanitarian law by private military and security companies.

12. Given that private military and security companies often operate in situations where Governments are unable to ensure respect for the rule of law, and in particular for international human rights obligations, the international community should ensure that Governments do their utmost to protect human rights and ensure respect of human rights by the companies they contract.

B. Privatization of security

13. The privatization of security is a global trend with developing countries in Africa and Latin America at the forefront of the private security market. In several countries, private security is one of the few growing sectors of the economy and one of the main private employers. The world’s largest security company, Group4Securicor (G4S) employs nearly 600,000 people and is the second largest private employer in the world. It is present in some 30 countries in Africa and 22 countries in Central and Latin America.[5] In South Africa for example, reported figures show that there are over 6,000 registered and active private security companies in the country, employing close to 400,000 security guards, double the number of police officers. Kenya has some 2,000 private security companies registered which employ close to 50,000 people; in Angola, 300 private security companies have around 35,000 staff, and Nigeria has some 2,000 companies.[6] In Colombia, 3,392 private military and security companies were registered as of June 2009, and 500 new ones were seeking to register their companies.[7]

14. The presence of international private military and security companies in Africa is also growing as companies take advantage of low wages and growing markets for their services in these emerging economies. These countries have become a useful recruiting ground for international private military and security companies, which have recruited thousands of third-country nationals for their operations in Afghanistan and Iraq. In Uganda alone, more than 10,000 recruits have been trained to work in the private security business in Iraq.[8]

15. The extensive privatization of security in developing countries, where Government institutions frequently remain weak, raises important questions about the long-term security implications of such privatization, including its impact on public security, on reinforcing inequalities between the rich and the poor, and on the accountability and responsibility of such private actors. Often, private security companies have been called upon to fulfil protection needs that the national police forces have been unable to provide, not only because of a lack of sufficient resources but also because the police are often a major source of public insecurity, taking part in violence, intimidation and acts of corruption.

16. Nevertheless, one should not overlook the potentially wide-ranging consequences for the use of private security companies on State institutions and their ability to provide public services. The Working Group found that companies might also play a role in exacerbating conflicts or increasing instability in some situations. For example, in Afghanistan, the Group found that the presence and activities of private military and security companies in Afghanistan was very much interconnected with the large number of unauthorized armed groups of various kinds on Afghan territory, reinforcing the perception that the companies were a threat to stability (see A/HRC/15/25/Add.2, para. 14). In other countries, the companies have been involved in repressing social protests in relation to multinational companies involved in infrastructure, mining, oil and other natural resources activities.

C. Lack of accountability of mercenaries, private military and security companies and their personnel

17. Legal proceedings against private military and security companies and their personnel for criminal activities or human rights abuses are relatively rare. In the few criminal and civil actions that have been brought, private military and security companies have argued that courts lacked jurisdiction to examine the alleged abuses committed abroad (for example, for American private military and security companies in the case of Iraq). They have also argued that the conduct in question does not meet the threshold of “violation of international law” serious enough to trigger the application of the United States Alien Tort Claims Act. In addition, they use the arguments that these are non-justiciable political questions and that the constraints are linked to providing evidence to hinder effective prosecution.[9]

18. In general, the Working Group observed that in conflict situations, like in Afghanistan or Iraq, allegations of human rights abuses perpetrated by employees of the private military and security companies were not properly reported and investigated. In addition to a lack of effective oversight structures, often victims were unable to identify the perpetrators of the abuses owing to difficulties in distinguishing between the many military actors, be they national forces, international forces or private military and security companies. Private military and security company personnel are not always wearing distinctive uniforms and identification badges and often drive unmarked sport utility vehicles with tinted glasses and no plates, which add to the confusion.

19. The Working Group has been informed that Aegis has been contracted by the United States Department of Defense to monitor the vehicles of private military and security companies at all times through a global positioning system, including audio and video devices, which can provide the exact location at a given point in time of the vehicle as well as information on the staff in the vehicle and on any incidents if they occur. This information could be made available to local governments in the event of incidents in order to assist them in investigating any allegations of human rights abuses. It would also demonstrate the commitment of the companies to ensure further transparency of their operations and to promote accountability.

20. In the sections below, the Working Group discusses the ongoing practice of granting immunity to private contractors, as well as the few prosecution cases of private military and security companies, of their personnel and of mercenaries.

1. Immunity agreements

21. The Working Group expressed its serious concern in a press statement issued on 10 November 2009 about the immunity provided to United States personnel and defence contractors under a new United States-Colombian military accord. The Supplemental Agreement for Cooperation and Technical Assistance in Defense and Security, signed on 3 November 2009, granted the United States permission to station up to 800 military personnel and 600 private security contractors, operating on seven Colombian military bases. Article VIII of the Agreement provided privileges, exemptions and immunities to contractors, amounting to a limitation of the effective exercise of judicial jurisdiction of Colombia over United States private military and security contractors operating on its territory. In addition, the Agreement did not specify any mechanism of supervision and control by the Colombian authorities of private military and security companies hired by the Government of the United States to operate in Colombia.

22. The Working Group would like to recall that in Iraq, the United States had to renegotiate its status of forces agreement with the Iraqi authorities in 2008 after the shooting by Blackwater/Xe personnel of 17 civilians in Nisoor Square, Baghdad, on 16 September 2007. The initial status of forces agreement contained a provision, the “Coalition Provisional Authority Order 17”, which granted immunity to contractors working for the Government of the United States. As of 1 January 2009, Iraq now has jurisdiction over such contractors under the Withdrawal Agreement negotiated between the United States and Iraq. To date, none of the Blackwater guards involved in the incident have been convicted.[10]

23. The granting of immunity to private contractors significantly diminishes their accountability for any crimes that they or their employees may commit and undermines the ability of victims to have access to justice and effective remedies. Given the lack of a comprehensive international legal framework governing the activities of private military and security companies, it is crucial that in all cases private military and security contractors be subject to local laws and to prosecution in local courts under such laws.

2. Prosecutions of private military and security companies and their personnel

24. The Working Group remains concerned at the lack of effective prosecutions of private military and security companies and their personnel. In the United States, several civil lawsuits have been lodged against such companies, but against significant legal obstacles, including the defence that the private military and security companies and their personnel could not be held liable for their actions given that the companies were operating under the exclusive control of the Government. The companies have also argued that they should enjoy immunity even for illegal conduct, including acts of torture, because they are contractors carrying out governmental functions. Private military and security companies and their personnel have also challenged the applicability of international law to them, claiming that international law obligations, including the prohibitions on torture and war crimes, do not extend to them since they are non-State actors (see A/HRC/15/25/Add.3).

25. However, the Working Group is encouraged by the recent decision of the United States District Court for the district of Maryland Greenbelt Division to proceed with the case against L-3 Services, Inc., a military contractor that had provided civilian translators for United States military forces in Iraq. The plaintiffs, a group of 72 Iraqi citizens, alleged that L-3 personnel had tortured and physically and mentally abused them during their detention. Though L-3 filed motions to dismiss using the arguments as discussed above, for the first time a court denied those arguments and allowed the case to go forward.[11]

3. Prosecutions and punishment of mercenaries

26. “Classical” mercenaries have been tried and convicted for criminal behaviour only in a handful of cases. Two of these cases are particularly notorious. The first is the trial in Equatorial Guinea of a number of mercenaries, including Simon Mann and Nick du Toit for their involvement in the attempted coup against President Obiang of Equatorial Guinea in 2004. The second was the conviction of the Israeli mercenary Yair Klein by a court in Colombia for training several members of Colombian paramilitary groups and militias of drug traffickers during the 1980s and 1990s. The Working Group notes that in the case of Equatorial Guinea, all mercenaries involved in the coup were pardoned and freed in November 2009 after having been sentenced to over 30 years imprisonment just over a year before. The Working Group raised this issue during its mission to Equatorial Guinea in August 2010, together with the allegations that the trials had failed to comply with international human rights standards and that some of the accused had been subjected to torture and ill-treatment. The Group will report on its findings in 2011.

27. Yair Klein was convicted in February 2001 by the Criminal Court of the Manizales District, Colombia, for instruction in and teaching of military and terrorist tactics, techniques and methods, committed with mercenaries and accomplices[12] and sentenced in abstentia to 10 years in prison. The Government of Colombia made unsuccessful attempts to claim his extradition from Israel. In March 2007, Interpol issued an international arrest warrant for Y. Klein, who was subsequently arrested in August 2007 at the airport in Moscow and placed in custody until his transfer to Colombia, which had requested extradition.

28. Despite the authorization given by a Russian tribunal to extradite Y. Klein to Colombia, the European Court of Human Rights decided to suspend the extradition procedure and on 1 April 2010 ruled that the implementation of the extradition order would give rise to a violation of article 3 of the European Convention of Human Rights (prohibition of torture and inhuman or degrading treatment or punishment).

29. The Colombian authorities have expressed their concerns and disappointment over this Court ruling, which they said provided de facto immunity for the crimes committed by Klein and his trainees and denied truth and justice for their victims. While the Working Group respects the judgement of the European Court of Human Rights on the issue of extradition, it is concerned that the decision may lead to a situation where Y. Klein would not be held accountable for his criminal activities and human rights abuses.

D. Contracting and use of private military and security companies
by the United Nations

30. The Working Group contacted a number of United Nations officials to gather information on the policy of the United Nations regarding the use of private military and security companies in the context of the United Nations peacekeeping missions or other United Nations activities in conflict-affected areas. Many private military and security companies are very keen to advertise their actual or hypothetical work with the United Nations and humanitarian organizations in order to portray a positive image of their activities and have been intensely lobbying to obtain contracts in peacekeeping operations.[13] However, the interests of private military and security companies remain purely financial.

31. The United Nations is using the services of private military and security personnel in some of the conflict zones in which it is engaged. However, it 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. The problem of accountability of private military and security company personnel becomes even more complex when private military contractors are used by international organizations, such as the United Nations, the European Union or the North Atlantic Treaty Organization. The concept of the institutional responsibility of intergovernmental organizations is still elusive and should prompt the United Nations to take precautionary measures to ensure that if and when it outsources its security and protection functions, it does so in accordance with the Charter of the United Nations and with international human rights standards and that it does so with proper management and oversight.

32. The Working Group sent letters in February 2010 to the Departments of Safety and Security, Management and Field Support requesting information from them about United Nations policies regarding the use of private military and security companies and the types of activities that the United Nations was contracting out to such companies and to individual security contractors, as well as information regarding the oversight mechanisms in place, including vetting procedures of personnel working as contractors for the United Nations. The Group regrets that none of the departments have replied in writing to its letters and invites them to cooperate with its mandate.

33. In July 2010, at the request of the Working Group, and while in session in New York, the members of the Group met with senior representatives of the Department of Safety and Security, who underlined the readiness of the department to cooperate and exchange views with the Group on the issue.

34. Representatives of the Department of Safety and Security noted that the United Nations had been confronted with increased security challenges to ensure protection of its facilities and staff around the world. They informed the Working Group that in order to provide protection for the 12,000 to 14,000 United Nations facilities worldwide, close to 60 per cent of the United Nations offices were using the services of private military and security companies. Most were local companies, providing guard services for the office, as well as residential security for the staff.

35. The Department of Safety and Security stated that there was currently no United Nations system-wide policy regarding the outsourcing of military and security functions of the Organization to private companies and that each United Nations agency could decide to use private military and security companies and to contract them directly. However, in 2008, members of the United Nations Inter‑Agency Security Management Network[14] started raising serious concerns regarding the increased use of private security providers by the United Nations and the need for further policy on the issue. The discussions have begun in the framework of the Network.

36. The Department of Safety and Security informed the Working Group that the Inter-Agency Security Management Network, at a recent meeting held in Vienna, in June 2010, had agreed to form a working group tasked with elaborating a system-wide policy for the use of private military and security companies. The primary purpose of the working group would be to consider a set of criteria for the use of private military and security companies, with the understanding that the companies would only be used as a last resort in situations where the United Nations did not have better alternatives, based on risk assessments carried out for each location.

37. The Working Group welcomes this United Nations initiative to reflect on such a core question regarding the security of its staff and facilities, including the use of private military and security companies. The Group understands the importance for the United Nations to be able to provide its assistance in tense and volatile situations while ensuring maximum security for its staff and facilities. In these conditions, pressure will continue to grow on the United Nations to hire more private military and security personnel. However, the Working Group believes that without proper policy and oversight, there is a risk that incidents could happen and have a negative effect on the image of the Organization and the United Nations role in providing assistance in the field. The United Nations should serve as a model for Member States and other organizations in the application of international human rights standards and should have a clear policy on where and in what conditions it will hire private military and security companies and on its oversight system. The United Nations should also have mechanisms to ensure that in cases of human rights abuses, private military and security contractors will be held accountable. The Working Group stands ready to provide its expertise to the United Nations while it is elaborating its policy, specifically in relation to definitions, principles, criteria and norms currently elaborated by the Working Group within its draft convention on the regulation of private military and security companies.

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