Right of peoples to self-determination 2 страница

III. Activities of the Working Group

38. In accordance with its mandated practice, the Working Group held three regular sessions during the year, two in Geneva and one in New York. The Working Group continued its work on the elaboration of a possible new international convention on the regulation of the activities of private military and security companies. It also convened three regional governmental consultations on traditional and new forms of mercenary activities, held regular meetings with the representatives of member States, non-governmental organizations and with experts. The Working Group continued to receive and review information regarding the activities of mercenaries and private military and security companies and their impact on human rights and decided on appropriate action.

A. Regional consultations

39. In accordance with General Assembly resolution 64/151, the Working Group held three regional consultations with States representatives during the reporting period.

40. After the first consultation for Latin America and the Caribbean, held in Panama in December 2007 (see A/HRC/7/7/Add.5) and the second, for Eastern Europe and Central Asia, held in Moscow in October 2008 (see A/HRC/10/14/Add.3), the Working Group held regional consultations for Asia and the Pacific in Bangkok in October 2009 (see A/HRC/15/25/Add.4), for Africa in Addis Ababa in March 2010 (see A/HRC/15/25/Add.5) and for the Western European and Others Group in Geneva in April 2010 (see A/HRC/15/25/Add.6).

41. Participants at the consultation for Asia and the Pacific[15] noted that private military and security companies were on the rise and active in the region and that the legal framework applicable to those groups needed to be clarified and further strengthened. Participants exchanged views on their national experience with private military and security companies, with the representatives of Afghanistan and Fiji giving comprehensive presentations on the situation of the companies in their respective countries. The Working Group presented the elements of its proposed draft convention on private military and security companies and engaged in a discussion over its purpose, scope and main principles, receiving comments and recommendations.

42. The consultation in Addis Ababa was attended by representatives of 20 African countries and by representatives from the Commission of the African Union.[16] Participants provided comprehensive information on, and engaged in discussions of, recent mercenary activities on the continent and their impact on human rights, together with the growing activities of local and foreign private military and security companies in Africa. The Working Group provided a comprehensive presentation of the elements of the draft convention, and States expressed strong support for the work done by the Group on the preparation of the draft convention.

43. The regional consultation held in Geneva in April with the representatives of Western European and Others Group[17] focused on initiatives taken at the national and regional level by Western States, as well as on elements for a possible new draft convention. The Working Group expressed its appreciation for the constructive comments it had received from many countries of the Western European and Others Group. While the Working Group noted the reservations of the European Union and others with regard to a possible new convention on the issue, it underlined the shared goal to establish more effective regulation of the private security industry in order to protect individuals from human rights abuses and to ensure that when such abuses occurred, those responsible would be held accountable and that victims would have access to effective remedies.

B. Country visits

44. The Working Group undertook two country visits in the course of 2009, one to Afghanistan and the other to the United States (see A/64/311). The full reports are contained in the addenda to document A/HRC/15/25.

45. The Working Group conducted a visit to Equatorial Guinea from 16 to 21 August 2010 to review the measures taken by the Government in the context of the attempted coups d’йtat conducted by mercenaries in 2004 and thereafter, including the judicial proceedings related to those cases. The Group also inquired about the trials conducted in relation to the 17 February 2009 attack on the presidential palace by alleged mercenaries, and in particular whether the due process guarantees as contained in international human rights instruments were respected.

46. The Working Group was invited to visit South Africa to discuss the current efforts of the Government to ensure oversight and monitoring of the activities of South African private military and security companies and their personnel operating abroad. The visit is scheduled for November 2011.

C. Communications

47. The Working Group continues to receive information from Governments, non‑governmental organizations and individuals concerning situations involving mercenaries, mercenary-related activities and allegations of human rights abuses by private military and security companies. In addition, since the Working Group last reported to the General Assembly, communications have been sent to Australia, Colombia, Fiji, Guinea, Israel, Papua New Guinea, South Africa and the United States. The Working Group would like to thank the Governments of South Africa and the United States for their prompt replies to its communications. The Working Group reiterates its interest in receiving responses from the concerned Governments in regard to allegations submitted and considers the responses to its communications to be an important part of the cooperation by Governments with its mandate. The communications and summaries of the responses received from Governments are contained in document A/HRC/15/25/Add.1.

IV. Progress achieved in the elaboration of a possible draft convention on private military and security companies

48. Following the adoption of Human Rights Council resolution 10/11 on the elaboration of a possible draft convention on private military and security companies, the Working Group continued to focus its work on the draft convention and organized a series of consultations from July 2009 to May 2010 with a wide range of stakeholders on the content and scope of such a legal instrument.

49. The initial draft of the convention was circulated on 15 July 2009 to some 250 experts, academics and non-governmental organizations for comments. In response, the Working Group received some 60 submissions, comprising a total of over 400 comments and recommendations. The Working Group also held consultations with experts and civil society representatives during its seventh session, held in New York in July 2009, in collaboration with the International Peace Institute. From September to December 2009, the Working Group considered the comments received from all the above-mentioned stakeholders and drafted an amended version of the draft convention.

50. In a second phase and in accordance with the above-mentioned resolution, in which the Human Rights Council requested the Working Group to 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, request their input on the content and scope of such a convention and to transmit their replies to the Working Group, the Working Group prepared a note on elements for a possible draft convention on private military and security companies containing the main principles and provisions of the draft convention and circulated it to all States Members of the United Nations for their comments on 4 January 2010.

51. The Working Group received submissions from Australia, Azerbaijan, Belarus, Canada, Cuba, Ecuador, Egypt, Guatemala, Lebanon, Mauritius, Qatar, the Russian Federation, Serbia, Slovenia, South Africa, Spain (on behalf of the States Members of the United Nations that are members of the European Union), Switzerland, Trinidad and Tobago, the United Kingdom and the United States. The Working Group also received comments and recommendations from some 20 intergovernmental organizations and institutions of the Commonwealth of Independent States.

52. The Working Group also received feedback on the elements of the proposed draft convention during the three regional consultations it had held with the representatives of member States in Addis Ababa, Bangkok and Geneva (see section A above). In addition, the Working Group organized briefings for all permanent missions to the United Nations during its sessions in Geneva in April 2010 and in New York in July 2010.

53. The annex to the present report contains the elements for a possible draft convention on the regulation, monitoring and oversight of private military and security companies for consideration by Member States. The full text of the draft convention developed by the Working Group is contained in the report of the Working Group to the Human Rights Council at its fifteenth session (see A/HRC/15/25, annex).

54. The aim of a new binding legal instrument is not to ban private military and security companies but to establish minimum international standards for States parties to regulate the activities of the companies and their personnel and to set up an international oversight mechanism. The draft convention proposes:

(a) To reaffirm and strengthen the State responsibility for the use of force and to reiterate the importance of the State monopoly of the legitimate use of force;

(b) To identify the functions that are inherently State functions and that cannot be outsourced to private military and security companies under any circumstances;

(c) To limit the use of force and firearms by private military and security companies according to international human rights standards;

(d) To request that State parties develop national regimes for the licensing, regulation and oversight of the activities of private military and security companies and their subcontractors;

(e) To promote international cooperation between States regarding the licensing and regulation of the activities of private military and security companies and their oversight;

(f) To establish the increased responsibility of “home States” (where private military and security companies are registered) for the export of military and security services of private military and security companies registered and licensed in their country;

(g) To request States of operation of private military and security companies to ensure effective control over the activities of foreign private military and security companies operating on their territory;

(h) To establish an international register of private military and security companies based on information provided by member States;

(i) To establish a committee on the regulation, oversight and monitoring of private military and security companies, in accordance with established procedures in international human rights treaties in order to monitor the measures taken by States parties to implement the convention.

55. The proposed convention would apply to States and intergovernmental organizations, within the limits of their competence, with respect to private military and security companies, their activities and personnel. It would apply to all situations where private military and security companies are used, regardless of whether the situation would be considered to constitute armed conflict.

56. The proposed convention would establish a committee on the regulation, oversight and monitoring of private military and security companies in order to monitor the legislative, judicial, administrative or other measures that States parties have adopted to give effect to the provisions of the convention. In accordance with established procedures in international human rights treaties, the committee would receive reports by States parties on the legislative, judicial, administrative or other measures that they had adopted and that would give effect to the provisions of the convention. The draft convention would also envisage an inquiry procedure and an individual complaint procedure. The committee could receive complaints from States parties considering that another State Party was not giving effect to the provisions of the convention and could set up an ad hoc conciliation commission if deemed necessary.

57. Finally, the draft proposes that the Secretary-General establish an international register of private military and security companies operating on the international market based on information provided by States parties. For the purposes of the register, each State party would be obligated to annually provide data for the register on the imports and exports of the military and security services of private military and security companies and to provide standardized information on private military and security companies registered in and licensed by the State party. The obligation to share information on companies in an open and transparent way would also facilitate greater public and parliamentary scrutiny.

V. Conclusions and recommendations

58. The Working Group would like to emphasize its utmost concern about the impact of the activities of private military and security companies on the enjoyment of human rights, in particular when operating in conflict, post-conflict or low-intensity armed situations, and notes that private military and security companies and their personnel are rarely held accountable for violations of human rights.

59. It urges States to renounce the inclusion of immunity provisions in bilateral agreements for their national contractors working abroad.

60. It welcomes the recent initiative of the Secretariat to elaborate a comprehensive policy regarding the use of private military and security companies by the United Nations and calls on the United Nations to elaborate a clear set of criteria, vetting standards and an oversight mechanism to monitor the compliance of private security contractors with United Nations policy. The Working Group recommends that in the process of this work, the Inter-Agency Security Management Network take into consideration the definitions, criteria and principles regarding the use, regulation and oversight of private military and security companies, as developed by the Working Group in cooperation with member States and non-governmental organizations and experts and as contained in its draft convention elaborated by the Group. In this regard, the Working Group recommends that the United Nations ensure adequate vetting of the personnel of private military and security companies as well as ensure appropriate human rights and international humanitarian law training. It also recommends that the United Nations set up a specific and transparent register of private military and security companies vetted and recommended for contracting with the United Nations. No companies with criminal records or whose personnel are under investigation for human rights abuses should be allowed to be contracted by the United Nations.

61. The Working Group recalls that it had submitted to the Human Rights Council at its fifteenth session a possible draft convention for the regulation, monitoring and oversight of private military and security companies. The Working Group believes that the Human Rights Council would constitute the best forum for the development of a new international instrument for the regulation, oversight and monitoring of private military and security companies, which would address the human rights impact of the activities of private military and security companies.

62. The Working Group is of the opinion that voluntary codes of conduct for private military and security companies are a useful mechanism and should be encouraged. However, it firmly believes that they should be combined with the elaboration and adoption of legally binding instruments at the national, regional and international levels.

63. The Working Group encourages Member States to carefully consider the draft proposal for a possible new international legal instrument regulating private military and security companies and recommends to all Member States, in particular those confronted with the phenomenon of private military and security companies, as contracting States, States of operations, home States or States whose nationals are employed to work for a private military and security company, to contribute to the Human Rights Council open-ended Working Group tasked with elaborating a new convention regulating private military and security companies, taking into account the initial work done by the Working Group on the use of mercenaries, if such a mechanism is established.

Annex

Elements of a proposed draft convention on private military and security companies

Preamble

The preamble makes reference, inter alia, to:

• The general principles enshrined in the Charter of the United Nations, the erga omnes obligations related to the protection of human rights, the principles of sovereign equality of all States, the territorial integrity and political independence of every State, the right of peoples to self-determination, and the prohibition of the threat and use of force in international relations

• The principles and rules of international human rights and humanitarian law and their complementarity

• The principles contained in the Rome Statute of the International Criminal Court and the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes

• The duty of all States to prevent abuses of international human rights and humanitarian law or other abuses committed by or involving transnational corporations and other business enterprises

• The duty of all States to prevent human rights violations through legislative and other measures, the duty to investigate reports of violations and, where appropriate, prosecute and punish offenders as well as to provide adequate remedies to the victims

• The United Nations Code of Conduct for Law Enforcement Officials, the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, the United Nations Non-Binding Guidelines on the Use of Military or Armed Escorts for Humanitarian Convoys; the Montreux Document of 17 September 2008 on pertinent international legal obligations and good practices for States related to operations of private military and security companies during armed conflict, the United Nations Global Compact initiative for businesses

• The increasing outsourcing of inherently State functions which undermine any State’s capacity to retain its monopoly on the legitimate use of force

• The increasing and alarming cases of abuses of international human rights law and international humanitarian law committed by private military and security companies and their personnel, and aware of the pressing need to establish effective measures to ensure that the activities of private military and security companies are carried out in accordance with international law

• The fact that self-regulation of private military and security companies is insufficient to ensure the observance of international human rights law and international humanitarian law by the personnel of these companies

• The urgency for States parties to agree on international minimum legal standards to regulate and monitor the activities of private military and security companies

Purposes of the convention
(Article 1)

The purposes of the convention are:

• To reaffirm and strengthen the State responsibility for the use of force within the comprehensive framework of State obligation to respect, protect and fulfil human rights, and to provide remedies for victims of human rights violations

• To identify those functions which are inherently State functions and which cannot be outsourced under any circumstances

• To regulate the activities of private military and security companies and subcontractors

• To promote international cooperation between States regarding licensing and regulation of the activities of private military and security companies in order to more effectively address any challenges to the full implementation of their human rights obligations including the right of peoples to self-determination

• To establish and implement mechanisms to monitor the activities of private military and security companies and violations of international human rights and humanitarian law, in particular any illegal or arbitrary use of force committed by private military and security companies, to prosecute the violators and to provide remedies to the victims

Definitions
(Article 2)

The convention proposes a number of definitions, including the following:

• Private military and/or security company (PMSC): a corporate entity which provides on a compensatory basis military and/or security services by physical persons and/or legal entities.

• Military services: specialized services related to military actions, including strategic planning, intelligence, investigation, land, sea or air reconnaissance, flight operations of any type, manned or unmanned, satellite surveillance, any kind of knowledge transfer with military applications, material and technical support to armed forces and other related activities.

• Security services: armed guarding or protection of buildings, installations, property and people, any kind of knowledge transfer with security and policing applications, elaboration and implementation of informational security measures and other related activities.

• Export of military and/or security services: an export of military and/or security services from the home State in which a PMSC is registered or export of military and/or security services which a PMSC provides outside the State in which it is registered or where it has its principle place of management or headquarters.

• Import of military and/or security services: an import of military and/or security services which a PMSC registered in a foreign State provides.

• Inherently State functions: functions, which are consistent with the principle of the State monopoly on the legitimate use of force and that a State cannot outsource or delegate to PMSCs under any circumstances. Among such functions are direct participation in hostilities, waging war and/or combat operations, taking prisoners, law-making, espionage, intelligence, knowledge transfer with military, security and policing application, use of and other activities related to weapons of mass destruction and police powers, especially the powers of arrest or detention including the interrogation of detainees and other functions that a State Party considers as inherently State functions.

• Contracting States: States that directly contract with PMSCs for their services, including, as appropriate, where such a company subcontracts with another PMSC or where a PMSC operates through its subsidiary companies.

• States of operations: States on whose territory PMSCs operate.

• Home States: States of nationality of a PMSC, namely, where a PMSC is registered or incorporated; if the State where the PMSC is incorporated is not the one where it has its principal place of management, the State where the company has its principal place of management or headquarters is the home State.

• Third States: States other than the contracting, home States or States of operation whose nationals are employed to work for a PMSC.

Scope of application
(Article 3)

• The convention applies to States and intergovernmental organizations within the limits of their competence with respect to PMSCs, their activities and personnel.

• References to “States parties” in the convention shall apply to intergovernmental organizations within the limits of their competence.

• The convention applies to all situations whether or not the situation is qualified as an armed conflict.

General principles

The convention is based on the following principles:

• State responsibility vis-а-vis private military and security companies
(Article 4)

– Each State party bears responsibility for the military and security activities of PMSCs registered or operating in their jurisdiction, whether or not these entities are contracted by the State.

– Each State party must ensure that the PMSCs it has contracted are trained in and respect international human rights and international humanitarian law.

– No State party can delegate or outsource inherently State functions to PMSCs.

– Each State party shall take such legislative and other measures as may be necessary to establish procedures for contracting PMSCs, licensing procedures for the export and import of military and security personnel and services and the effective customs and other forms of control over export/import and re‑export/re-import of firearms used by PMSCs.

– Each State party, in accordance with its domestic law, shall take legislative and other measures required to introduce full or partial prohibition on the delegation or outsourcing of military and/or security services.

• Rule of law

(Article 5)

– Each State party shall ensure that PMSCs, their personnel and any structures related to their activities perform their respective functions under officially enacted laws consistent with international human rights and humanitarian law.

– Each State party shall take such legislative, administrative and other measures as may be necessary to ensure that PMSCs and their personnel are held accountable for violations of applicable national or international law.

– Each State party shall ensure that any contract or agreement between the State party and a PMSC on provision of military and/or security services entered into by a PMSC as well as its employees is in accordance with international law and is consistent with the legislation of the home State, the contracting State, the State of operations and third States whose nationals are employed to work for a PMSC under this contract.

• State sovereignty

(Article 6)

– States parties shall ensure that PMSCs and their personnel under no circumstances carry out activities that undermine the sovereignty of another State, its territorial integrity and/or that contravene the principle of sovereign equality and obligation of non-intervention in the domestic affairs of other States and the principle of self-determination of peoples.

– Nothing in the convention entitles a State party to undertake in the territory of another State the exercise of jurisdiction and performance of inherently State functions under international as well as domestic laws.

• Respect and protection of international human rights and humanitarian law

(Article 7)

– Each State party shall take legislative, judicial, administrative and other measures as may be necessary to ensure that PMSCs and their personnel are held accountable in accordance with the convention and to ensure respect for, and protection of international human rights and humanitarian law.

– Each State party shall ensure that PMSCs and their personnel apply due diligence to ensure that their activities do not contribute directly or indirectly to violations of human rights and international humanitarian law.

– Superiors of PMSC personnel, such as:

a. Governmental officials, whether they are military commanders or civilian superiors; or

b. Directors or managers of PMSCs;

may be liable for crimes under international law committed by PMSC personnel under their effective authority and control, as a result of their failure to properly exercise control over them, in accordance with the rules of international law. No clause in a contract shall be interpreted as evading the responsibility of superiors under international law.

• Prohibition of the use of force

(Article 8)

– Each State party shall take such legislative, administrative and other measures as may be necessary to make it illegal for and prohibit PMSCs and their personnel to directly participate in hostilities, terrorist acts and military actions aimed at, or which States have grounds for suspecting would result in the overthrow of a Government; the coercive change of internationally acknowledged borders of the State; the violation of sovereignty; explicitly targeting civilians or causing disproportionate harm.

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