Right of peoples to self-determination 1 страница

Sixty-second session

Item 71 of the provisional agenda*

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 its resolution 61/151, 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.

  * A/62/150.

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 Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the rights of peoples to self-determination was established pursuant to Commission on Human Rights resolution 2005/2. It is mandated, inter alia, to monitor mercenaries and mercenary-related activities in all their forms and manifestations in different parts of the world, and 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. The present report is submitted in accordance with General Assembly resolution 61/151. Section II outlines the activities undertaken by the Working Group, including the implementation of General Assembly resolution 61/151, the Working Group’s second session, held from 19 to 24 February 2007 in Geneva, and describes field missions to Honduras, Ecuador, Peru, Fiji and Chile. It refers to actions taken under the Working Group communications procedures, and reports on consultations held at the governmental, intergovernmental and non-governmental levels. Section III depicts country situations by region and summarizes the responses received to a questionnaire sent in April 2007 to all Member States. Section IV contains an overview of relevant international developments, including the status of the International Convention against the Recruitment, Use, Financing and Training of Mercenaries, and also regional developments as reported by regional and other intergovernmental organizations. Section V addresses the Working Group’s future activities and section VI contains its conclusions and recommendations. The Working Group promotes the ratification of and accession to the International Convention against the Recruitment, Use, Financing and Training of Mercenaries, and the incorporation of relevant legal norms into national legislation. It also recommends the setting up of regulatory mechanisms to control and monitor the activities of private military and security companies, including a system of registering and licensing those companies, and to sanction them when norms are not respected. The Working Group reiterates its recommendation that regional round tables be organized followed by a high-level round table, convened under United Nations auspices, to discuss the fundamental question of the role of the State as holder of the monopoly on the use of force.

Contents

		Paragraphs	Page
I. Introduction.........................................................	1–4
II. Activities of the Working Group	5–25
A. Implementation of General Assembly resolution 61/151	5–8
B. Second session of the Working Group	9–10
C. Field missions....................................................	11–19
1. Honduras..................................................	11–12
2. Ecuador....................................................	13–14
3. Peru, Fiji and Chile............................................	15–19
D. Communications.................................................
E. Other activities	21–25
III. Country situations....................................................	26–54
A. Africa.........................................................	27–31
B. Asia and the Pacific...............................................	32–37
C. Eastern Europe and Central Asia.....................................	38–43
D. Latin America and the Caribbean....................................	44–50
E. Western Europe and North America	51–54
IV. International and regional developments...................................	55–63
V. Future activities	64–67
VI. Conclusions and recommendations.......................................	68–73
Annex
Status of the International Convention against the Recruitment, Use, Financing and Training of Mercenaries as at 16 August 2007..................................................

I. Introduction

1. At its sixty-first session, the Commission on Human Rights decided, in resolution 2005/2, to establish a 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, made up of five independent experts, for an initial period of three years. 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 succeeded the mandate of the Special Rapporteur on the use of mercenaries, as a means of impeding the exercise of the right of peoples to self-determination established in 1987. The Working Group is headed by its Chairperson-Rapporteur, Josй Luis Gomez del Prado (Spain) and is composed also of Najat Al-Hajjaji (Libyan Arab Jamahiriya), Amada Benavides de Pйrez (Colombia), Alexander Nikitin (Russia) and Shaista Shameem (Fiji).

2. Pursuant to its mandate, the Working Group has continued to monitor mercenaries and mercenary-related activities in all their forms and manifestations, and 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. During the period under review, the Working Group held its second session in Geneva, from 19 to 24 February 2007, and undertook field visits to Honduras, Ecuador, Peru, Fiji and Chile. The Working Group has received and acted upon information concerning individual cases and situations, and addressed letters of allegation and urgent actions to Governments.

3. For the purposes of the present report, and while recognizing the definitional challenges, the Working Group refers to private military and private security companies as including private companies which perform all types of security assistance and training, and provide consulting services, including unarmed logistical support, armed security guards, and those involved in defensive or offensive military and/or security-type activities, particularly in armed conflict areas.

4. Pursuant to resolution 2005/2, the Working Group submits its second report to the General Assembly, for consideration at its sixty-second session.

II. Activities of the Working Group

A. Implementation of General Assembly resolution 61/151

5. In response to General Assembly resolution 61/151, in April 2007, the Working Group addressed a questionnaire to all Member States and submitted an adjusted questionnaire also to regional and other intergovernmental organizations, inviting contributions on the implementation of the resolution, with a view to reporting, with specific recommendations, its findings.

6. The information requested concerned (a) the steps, including legislative and other measures, that Governments had taken to ensure that territories under their control, as well as nationals of their States, were not used for the recruitment, assembly, financing, training and transit of mercenaries; (b) how Governments exercised vigilance against any kind of recruitment, training, hiring or financing of mercenaries by private companies that offered military and security consultancy and services, and whether a specific ban had been imposed on these companies intervening in armed conflict; (c) whether Governments were considering taking the necessary action to ratify the International Convention against the Recruitment, Use, Financing and Training of Mercenaries; (d) whether Governments had investigated the possibility of mercenary involvement whenever and wherever criminal acts of a terrorist nature occurred and, if applicable, brought to trial those found responsible or had considered their extradition; (e) whether Governments had brought to justice perpetrators of mercenary activities and those responsible for the use, recruitment, financing and training of mercenaries; (f) whether Governments had cooperated with and assisted the judicial prosecution of those accused of mercenary activities in transparent, open and fair trials.

7. Furthermore, the Working Group invited information as to whether Governments had adopted, were in the process of adopting, or had considered for adoption in the future any measures in order to regulate the outsourcing of functions traditionally undertaken by members of the armed forces; and which functions Governments considered “inherently governmental” (i.e. those which could not be performed by the private sector).

8. The Working Group welcomes the responses received from 23 Member States and from 6 regional and other intergovernmental organizations (see sects. III and IV below). The Working Group encourages other Member States and regional and other intergovernmental organizations to submit their responses also to enable the Working Group to complete a forthcoming comparative analysis.

B. Second session of the Working Group

9. The Working Group held its second session in Geneva from 19 to 23 February 2007. It elected Josй Luis Gomez del Prado its Chairperson-Rapporteur for the coming year. It held consultations with representatives of Member States, United Nations agencies and organs, the Office of the United Nations High Commissioner for Human Rights, the International Labour Organization, the International Committee of the Red Cross, regional and other intergovernmental organizations, non-governmental organizations and an association of private military and private security companies.

10. After having considered a number of country situations, the Working Group decided to address letters of request, or renewed requests, to the Governments of Afghanistan, the Central African Republic, Chad, Equatorial Guinea, Fiji, Ghana, Iraq, Papua New Guinea, South Africa, the United States of America and Zimbabwe. With regard to regulatory initiatives, the Working Group agreed, as a short-term objective, to promote the ratification/accession of Member States to the International Convention against the Recruitment, Use, Financing and Training of Mercenaries, and, as a long-term objective, to seek support for a process towards a protocol to the International Convention, in order to address newer forms of mercenarism and the activities of private military and private security companies. On 23 February 2007, the Working Group issued a press release upon concluding its second session.[1]

C. Field missions

1. Honduras

11. A delegation of the Working Group, composed of its Chairperson-Rapporteur and one member, visited Honduras from 21 to 25 August 2006.

12. The Working Group submitted its report on the visit to Honduras (A/HRC/4/42/Add.1) to the Human Rights Council at its fourth session, and welcomed the invitation and excellent cooperation with the Government.[2] It recommended, inter alia, that the regulatory framework for private security companies be strengthened, that international human rights and other relevant United Nations standards be incorporated in the training provided by private security companies to their employees, and that a transparent registry of these companies be maintained. It urged the authorities to adopt measures enabling them to respond promptly to complaints submitted by individuals who had returned from Iraq, and to inquiry about the possible responsibility of private security companies.

2. Ecuador

13. A delegation of the Working Group, composed of the Chairperson-Rapporteur and one member, visited Ecuador from 28 August to 1 September 2006.

14. The Working Group submitted its report on the visit to Ecuador (A/HRC/4/42/Add.2) to the Human Rights Council at its fourth session, and welcomed the invitation and excellent cooperation with the Government.[3] It recommended, inter alia, that the Government accede to the International Convention against the Recruitment, Use, Financing and Training of Mercenaries; consider incorporating the legal obligations thereof by means of a separate national law, or the inclusion of mercenary acts as an offence in the Criminal Code; complete promptly the investigations surrounding the private company Epi Security and Investigations; and ensure effective remedies to those affected by the spraying programme under Plan Colombia.

3. Peru, Fiji and Chile

15. The Working Group also visited Peru, Fiji and Chile in 2007. It expresses its appreciation to the Governments of those countries for their invitations. Comprehensive reports on these missions, including its conclusions and recommendations, will be submitted to the Human Rights Council at a forthcoming session. The present section provides an overview of the Working Group’s preliminary observations expressed upon the completion of the respective visits.

16. A delegation of the Working Group, composed of the Chairperson-Rapporteur and one member, visited Peru from 29 January to 2 February 2007. It received information indicating that hundreds of Peruvians had been recruited and trained in Peru by private security companies to work in Iraq and Afghanistan as security guards. The recruiting companies operating in Peru worked for companies based abroad and with contracts obtained from the Government of the United States of America. The Working Group was informed of contractual irregularities, poor working conditions, partial or non-payment of salaries, neglect of basic needs and that over 1,000 Peruvians allegedly remained in Iraq. It also received allegations that private security groups or police officers engaged in private security work were involved in actions to intimidate persons in the Cajamarca region. The Working Group recommended, inter alia, that in the process of bringing its legislation into line with the International Convention, Peru should adopt the broadest possible interpretation in order to typify, at the domestic level, not only the traditional offence of acting as a mercenary but also mercenary-related activities, taking into account the emergent trends of the activities of private security companies.[4]

17. A delegation of the Working Group, composed of the Chairperson-Rapporteur and one member, visited Fiji from 14 to 18 May 2007. It noted that Fiji had an established tradition of well-trained, disciplined and highly skilled military and security personnel who had performed security functions in various capacities worldwide, including for the United Nations. The Working Group, however, expressed concern that the activities carried out by Fijians recruited by private military and private security companies to operate in Iraq could qualify as mercenary-related activities. The Working Group also received information about some Fijians who had been exploited by private military and private security companies, and whose experience had included contractual irregularities and poor working conditions. It recommended, inter alia, that Fiji accede to the International Convention, develop accompanying national legislation, establish a system of regulation, licensing, control and monitoring of private security companies in order to provide effective oversight, and adopt measures to address issues of reintegration and post-traumatic stress disorder for individuals returning from security work abroad.[5]

18. At the invitation of the Government, a delegation of the Working Group, composed of the Chairperson-Rapporteur and one member, visited Chile from
9 to 13 July 2007. It studied the recruitment, training and contracting of Chileans to work with private security companies operating in Iraq. Although contracted as security guards, the recruits were allegedly provided with military training by private companies in the United States, Jordan or Iraq and eventually performed military functions. Although it noted that the Chilean authorities had responded promptly, it expressed concern that Chileans were still being recruited to perform security duties in Iraq. The companies concerned were apparently not registered in Chile and some were subsidiaries of private military and private security companies registered abroad. The Working Group also received information on abuses of the human rights of indigenous communities, allegedly by security guards contracted by forestry companies. It welcomed the measures taken, including a draft bill submitted in the Congress for accession by Chile to the International Convention, the establishment of an inter-institutional working group to study provisions to be adopted in internal legislation relating to mercenarism, efforts to replace the current law on private security services by a new law and draft bills concerning the reform of military careers. The Working Group recommended, inter alia, that the inter-institutional working group should conclude its study on penalization and legislation at the national level with a view to adopting the broadest possible criteria for the offence of mercenarism, that the investigations in the military courts should be swiftly concluded and that urgent measures should be taken to safeguard the rights of Chilean nationals still working in Iraq.[6]

19. The Working Group reiterates its appreciation to the Member States that invited it to visit and contributed, thus, to the fulfilment of its mandate. It welcomes indications from other States of forthcoming invitations and renews its appeal for invitations from Afghanistan, the Central African Republic, Chad, Colombia, Equatorial Guinea, Ghana, Iraq, Papua New Guinea, South Africa, the United States of America and Zimbabwe.[7]

D. Communications

20. The Working Group has increasingly received information from Governments, non-governmental organizations and individuals concerning situations involving mercenaries, mercenary-related activities and private military and security companies. During the year under review, communications have been sent to Colombia, Ecuador, Honduras, Peru and the United States of America. The communications and summaries of responses received from Governments will be reflected in the report of the Working Group to be submitted to the Human Rights Council at a forthcoming session.

E. Other activities

21. In 2007, the Chairperson-Rapporteur of the Working Group has consulted with delegates of over 40 permanent missions in Geneva.

22. The Chairperson-Rapporteur and one member of the Working Group participated in the fourteenth annual meeting of mandate holders in Geneva from
18 to 22 June 2007. During that visit, the Chairperson-Rapporteur held separate consultations and also participated in a meeting, on 19 June 2007, hosted by the Special Representative of the Secretary-General on human rights and transnational corporations and other business enterprises.[8]

23. Furthermore, the Chairperson-Rapporteur of the Working Group and its members have conducted other activities, including consultations with stakeholders, and have participated in workshops and university lectures in their respective regions. The Chairperson-Rapporteur and one member participated in the workshop on the theme of human rights special procedures and the institution of the special rapporteur, organized by the United Nations University and the Raoul Wallenberg Institute, in Lund, Sweden, from 2 to 4 May 2007;[9] and in the “Dialogue on private military and security companies and human rights”, organized by the Business and Human Rights Resource Centre, in London, on 8 May 2007.[10]

24. The Chairperson-Rapporteur chaired and made a presentation to a seminar entitled “Privatization of security and warfare and impacts on human rights”, hosted by the Business and Human Rights Resource Centre, held at the Palais des Nations in Geneva on 21 March 2007. He also participated in a round table on the United Nations and new forms of mercenarism, held at the Faculty of Law of the Universidad Complutense de Madrid on 24 May 2007. He made a presentation to a seminar on the theme “Poverty, inequality and torture: addressing the economic, social and cultural root causes of violence through the United Nations procedures system”, organized by the World Organization Against Torture, in Geneva, from
18 to 22 June 2007. Furthermore, he made a presentation on “Privatizing the use of force: accountability issues and implications for local communities” at a seminar entitled “Transforming societies emerging from conflicts: an agenda for equality and social justice”, organized by the University of Deusto in Bilbao, Spain, on
28 and 29 June 2007.

25. During the period under review, the Working Group and the issues it addresses under its mandate received important and wide coverage by international and local media, including by printed and electronic media, radio and television stations. The Working Group recognizes and welcomes the contribution of the media in the dissemination of its findings and recommendations.

III. Country situations

26. The section below reflects responses from Member States to the Working Group questionnaire, sent out in April 2007, on the implementation of certain paragraphs of General Assembly resolution 61/151 (see paras. 5-8 above). While it appreciates all responses received, the Working Group notes the position of some States that mercenarism does not exist in, or affect, their countries. That position was also expressed by some States during other consultations. In this regard, the Working Group notes that many States have, in recent years, been taken by surprise by modern forms of mercenarism, including unforeseen effects of the recruitment activities of private military and private security companies. The Working Group therefore urges States to take proactive measures, including legislative and other action at the national level, to prevent all forms of mercenarism and fulfil their State obligations of due diligence in respecting, protecting and ensuring human rights.

A. Africa

27. As of 16 August 2007, the Working Group had received and welcomed responses from the following States in Africa: Algeria, Madagascar, the Sudan and Tunisia. While Algeria, Madagascar and the Sudan reported the absence of a specific ban on private companies that offered military and security consultancy and services intervening in armed conflicts, they pointed out that they had relevant laws with provisions concerning national integrity and security.

28. In a letter dated 31 May 2007, the government of Algeria referred to legislative provisions provided in the Constitution (arts. 25, 26 and 27) and in the Penal Code. Article 76 of the Penal Code establishes the offence of peacetime recruitment of volunteers or mercenaries on Algerian territory for a foreign power or entity, while article 87 bis 6 provides that it is an offence for any Algerian national to be active in or a member of a subversive or terrorist association, group or organization abroad, even if its activities are not directed against Algeria. The penalties for these offences range from 10 to 20 years’ imprisonment and fines. The Government stated that no such form of mercenarism via private companies or individuals existed in the country. It pointed out that investigative and judicial proceedings had been carried out with regard to the implication of mercenaries in criminal acts of a terrorist nature and individuals had been brought to justice for terrorist acts. The Government considered that all public functions concerning the sovereignty of the State, in particular law enforcement, the armed forces and the justice system were inherently governmental functions that could not be exercised by the private sector.

29. In a letter dated 14 June 2007, the Government of Madagascar referred to legislative measures, including the Malagasy Penal Code, articles 75 to 108 of which provide for the punishment of any act posing a threat to the safety of the State and articles 265 to 267 for the repression of criminal associations. Madagascar ratified the Convention for the Elimination of Mercenarism in Africa of the Organization of African Unity in 2005. The Government also reported on laws and provisions concerning territorial integrity, security and defence, responsibility therefor lying solely with the State. It indicated that intervention in armed conflicts was the responsibility of the armed forces alone and that no private companies engaged in national defence. The National Police cooperated fully within the INTERPOL framework in judicial proceedings regarding individuals accused of mercenary activities. The Government considered that the functions attributed to the Ministries of Defence, Finance and Budget, Foreign Affairs, Justice and the Interior were inherently governmental.

30. In a letter dated 27 June 2007, the Government of the Sudan referred to relevant legislative measures, including its 1991 Criminal Code. Article 61 of the Code establishes it as an offence for any non-member of the regular armed forces to carry out, participate in or instigate unauthorized military exercises, operations or manoeuvres, and article 51 criminalizes the mobilization or training of persons or mustering of weapons or equipment for the purpose of instigating a war against the State (this also applies to the mobilization and equipping of soldiers for the invasion of a foreign State). The Government informed the Working Group of its laws on the armed forces and national police, which solely recruit Sudanese nationals. It indicated that there was no scope for any foreign forces to perform the conventional functions of the armed forces, except for peacekeeping or regional forces. The Government provided information about local companies offering services, such as the procurement of safety equipment and the control of access to private sector facilities and certain Government institutions; the employees of such companies must be Sudanese nationals. The activities of these private companies were limited to those mentioned above; no companies provided military services. The Government reported that a German national had been brought to justice in an open trial for providing mercenary-related services to the Anya-Nya movement in Southern Sudan in 1970, and that Vladimir Ilich Ramнrez Sбnchez (alias Carlos the Jackal) had been arrested in the Sudan in 1994 and extradited to France.

31. In a letter dated 11 July 2007, the Government of Tunisia indicated that its legislation did not address specific offences concerning the recruitment, assembly, financing, training and transit of mercenaries. The Government informed the Working Group of steps taken, notably the ratification of the Additional Protocol to the Geneva Conventions of 12 August 1949 relating to the Protection of Victims of International Armed Conflicts; the accession of Tunisia in 1984 to the Convention for the Elimination of Mercenarism in Africa; and several relevant provisions in the Tunisian Penal and Military Codes. It pointed out that its legislation prohibited the creation of private companies offering military and security consultancy services, because those functions fell essentially under the responsibility of the Ministries of Defence and of the Interior and Development. The Government regarded all functions concerning the sovereignty of the State, and in particular those relevant to national defence and the maintenance of public order, as inherently governmental.

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