Right of peoples to self-determination 2 страница

B. Asia and the Pacific

32. As of 10 August 2007, the Working Group had received and welcomed responses from the following Member States in Asia and the Pacific: Bangladesh, Lebanon, Malaysia, Qatar and Yemen.

33. In a letter dated 30 May 2007, the Government of Bangladesh referred to relevant legislative measures, including the Arms Act and the Explosive Substance Act, which prohibit the possession by any private individual of any firearms or explosive without license from the proper Government authority. Other than in the armed forces of Bangladesh, no private person could undertake military training for soldiering either in or outside the country. The authorities had their own intelligence/information-collection mechanisms with regard to the recruitment, training, hiring or financing of mercenaries, and the Government could take punitive actions against persons or private organizations accordingly. It listed the following functions as inherently governmental: (a) the national security of Bangladesh;
(b) the maintenance of law and order in the country; (c) the protection of people and their property; and (d) ensuring justice for the people.

34. In a letter dated 5 July 2007, the Government of Lebanon stated that mercenary activities were illegal and an offence of “illegal association” punishable by law. The Government informed the Working Group of the relevance of articles 335 and 337 of the criminal code, which addressed situations where two or more persons create an association/company; make written or oral agreement in view of committing a crime against civilians or assets; take over power; or attack military, financial or economic institutions. Regarding threats of attack or attacks on life, institutions or public administrations, the Government indicated that there were no private security associations or companies working in this domain with the permission of the authorities. Such associations or companies did not usually work in controlling security, which was the responsibility of the military forces.

35. In a letter dated 17 July 2007, the Government of Yemen informed the Working Group that article 36 of its Constitution prohibited the establishment of army, paramilitary and auxiliary groups, under any circumstances. In addition, in accordance with article 36, only the State could create military forces, security units or any other forces, and these belonged to the people. The function of those State forces was to secure the Republic and its territories, and it was forbidden for any organ, group establishment or political party to create such forces. The Government pointed out that those functions were exclusively governmental and should not be outsourced to anyone at any stage. It stated that there were no private companies in Yemen recruiting mercenaries and that the law did not allow for the creation of such companies. Any cases related to mercenarism had been transmitted to the Ministry of Justice.

36. In a letter dated 30 May 2007, the Government of Qatar informed the Working Group of the offence in its national legislation of the recruitment of soldiers to engage in hostilities against a foreign State, as reflected in article 114 of the Penal Code no. 11, under the section on offences against State security. The Government stated that there were no companies providing military services in the country. With regard to security companies, these were established by and operated under licence from the Ministry of the Interior. Activities that might be devolved to non-State bodies were confined to security of buildings and the protection of non-State facilities, such as commercial enterprises. Such activities could be entrusted to security protection companies, which were licensed by the competent authorities and subject to governmental supervision and control and to special regulations. The Government pointed out that the terrorist incident in 2005 in Qatar had been an isolated incident and that no mercenaries had been implicated.

37. In a letter dated 29 May 2007, the Government of Malaysia stated that mercenaries were not an issue in the country.

C. Eastern Europe and Central Asia

38. As of 10 August 2007, the Working Group had received and welcomed responses from the following Member States in Eastern Europe and Central Asia: Armenia, Azerbaijan, Croatia, Latvia and Moldova. Armenia and Azerbaijan informed the Working Group that no clear and specific ban had been imposed on private companies that offered military and security consultancy and services, intervening in armed conflicts.

39. In a letter dated 29 June 2007, the Government of Armenia indicated that mercenarism was qualified under article 395 of its Criminal Code as a crime against peace and humanity. The issue was specifically addressed in article 395.1, concerning the individual definition of mercenaries, and article 395.4, concerning the recruitment of mercenaries. The Government stated that no private military and private security companies existed in Armenia and had not since its independence, and that if they were to form, they would be prosecuted in accordance with criminal law. The “Law on Protection” regulated the military service of Armenian nationals in foreign armed forces and of foreign nationals in the Armenian armed forces, as well as the deployment of armed forces. In accordance with article 11.2 of that law, the Ministry of Defence could deploy the armed forces on the basis of a Government decree. For the purposes of protection, military units from foreign countries could be deployed on Armenian territory in accordance with the provisions of relevant international agreements. The Government also informed the Working Group that the involvement of the private sector in State protection functions, which were exclusively and inherently governmental functions, was prohibited by law.

40. In a letter dated 20 June 2007, the Government of Azerbaijan informed the Working Group of relevant provisions of its Criminal Code. Article 114, paragraph 2 of the Criminal Code included a definition of “mercenary” as a person who acted with a view to receiving material compensation, was not a national of one of the parties to an armed conflict or hostilities, did not reside in the territory of one of the parties and had not been sent to perform official duties. Articles 32.3 and 32.4 included definitions of “organizer” and “instigator” relating to the commission of an offence and article 33.3 listed the associated criminal liabilities. Articles 114.1 to 114.3 listed participation in armed conflict or hostilities and the recruitment, training and financing of mercenaries as punishable offences. Article 279 of the code described participation in the establishment or activities of illegal armed formations or groups as punishable offences. In 2006, there had been seven convictions under article 214 (on the grounds of terrorism) and 13 convictions under the above-mentioned article 279. The Government also pointed out that national legislation did not provide for activities by private (non-State) military or security companies.

41. In a letter dated 7 August 2007, the Government of Croatia informed the Working Group that, in 2004, after it ratified the International Convention, it had amended the Criminal Code accordingly. Article 167 (b) established the offence of recruitment, use, financing and training of mercenaries, which was punishable by terms of imprisonment ranging from one to eight years. It also referred to the Act on the Liability of Legal Persons for Criminal Activity, with responsibilities for natural as well as legal persons. The Government also informed the Working Group that no criminal activity related to article 167 of the Criminal Code had yet been detected or processed.

42. In a letter dated 17 July 2007, the Government of Latvia informed the Working Group that current national legislation had provided sufficient guarantees against possible mercenary activities, and that it did not see any evidence of urgency of the matter in Latvia. The Government stated that it was in the process of evaluating the effects of accession to the International Convention on national legislation and governmental regulations.

43. In a letter dated 9 August 2007, the Government of Moldova informed the Working Group that various agencies and ministries, including the Information and Security Service, the Ministry of Justice and the Procurator General, were addressing mercenary issues and working on norms and measures to combat mercenary-related crimes. The Government stated that activities of physical or legal persons engaged in the recruitment, use, financing and training of mercenaries were punishable by law. It pointed out that Moldova had acceded to the International Convention in 2005 and that relevant legislation, such as Criminal Code articles 130 and 141, established the offence of mercenary activities punishable by terms of imprisonment (of) from 5 to 15 years.

D. Latin America and the Caribbean

44. As of 10 August 2007, the Working Group had received and welcomed responses from the following Member States in Latin America and the Caribbean: Chile, Colombia, Costa Rica, Ecuador, El Salvador and Haiti.

45. In a letter dated 18 April 2007, the Government of Chile informed the Working Group of an inter-ministerial working group, chaired by the Ministry of External Relations, established to study aspects of mercenary-related activities in issues of security and defence. The Government pointed out that it monitored mercenary activities through the Chilean police, and referred to meetings held at the national level to combat the phenomenon. The Government also referred to the activities of an individual who had recruited Chilean former soldiers, some of whom received training in El Salvador and were later taken to Iraq to work as security guards. It informed the Working Group of the measures taken and of the transfer of the trial of that person from the military tribunal to the civil court; the case remained ongoing. It referred to the legislative texts and provisions that had been considered, the challenges in finding adequate penal sanctions under existing domestic legislation for this case and ongoing deliberations by the inter-ministerial working group to remedy the situation. It considered the functions of national defence, order and public security to be inherently governmental and stated that it was not planning to outsource any functions of its military forces.

46. In a letter dated 5 July 2007, the Government of Colombia informed the Working Group that article 341 of the Colombian Penal Code (Law 599 of 2000) described training for illicit activities as a penal offence, punishable by prison terms of from 15 to 20 years and by fines of from 1,000 to 20,000 minimum monthly salaries. According to article 340 of Law 599 (modified by Law 733 of 2002) provided that when there was an intent to commit genocide or to organize, promote, arm or finance illegal armed forces, penalties of prison terms of from 6 to 12 years and fines of from 2,000 to 20,000 minimum monthly salaries were applicable. Law 890 of 2004 had increased those penalties. Two specific means deployed to monitor mercenaries and related activities were the National Police and the Superintendence of Surveillance and Private Security. The latter, a national organ under the Ministry of Defence, monitored and exercised oversight of the private security industry. The Government reported that, although there had been judicial and police actions against perpetrators of terrorism, the National General Prosecutor had not yet investigated or registered any cases of mercenaries involved in terrorist attacks. With regard to its consideration of inherently governmental functions, the Government cited article 223 of the Constitution which, inter alia, established that only the Government could manufacture weapons, and ammunition of war and explosives, and the bearing of arms by members of law enforcement officials and other State agents was regulated by law.

47. In a letter dated 1 June 2007, the Government of Costa Rica informed the Working Group that it had not had an army since 1949. The Government referred to the amendments to the Law on Migration and Aliens of 2005 and to serious offences under the Law on Narcotics, Psychotropic Substances, Use of Non-authorized Drugs and Connected Activities. Although the offence of mercenarism did not exist in national legislation, the Government pointed out related sanctions including for offences against public order, against national security and against the public authorities and the constitutional order. A specialized agency, the Direccion de Inteligencia y Seguridad Nacional, under the Ministry of the Presidency, was responsible for investigating cases of possible recruitment, financing and participation of persons associated with subversive groups and related issues. Investigations of possible links between mercenarism and terrorism at the local and international levels had been conducted and were in their final stages. The Government also reported on cases of perpetrators of mercenary activities brought to justice in the 1980s; some individuals had been convicted; while others had been extradited or expelled from the country. The Government listed national security, politics, jurisdiction and the police as inherently governmental functions.

48. In a letter dated 10 May 2007, the Government of Ecuador informed the Working Group of the reform of its Penal Law in 2005, making penal offences the use of persons in armed conflicts and recruitment for the purpose of committing offences. It also highlighted the 2003 law on private surveillance and security and the 2005 law on subcontracting, which regulated the functioning of private military security companies. It monitored mercenarism and related issues by means of the law on private surveillance and security (articles 8 and 17) and through the Ministry of Government and Police. The Ecuadorian army had the authority to suspend or cancel the permits of private security companies to possess and carry arms. The Government informed the Working Group of the existence of mailboxes to which individuals could address claims of human rights violations by subcontracted companies. It also provided updated information on a case dating from 2005, when an individual in Manta had recruited staff to work for private security companies in Iraq, pointing out that that case remained under investigation by the relevant authorities. The Government stated that no outsourcing of army functions existed. Reference was made to temporary contracts that had been granted to private security companies in the city of Guayaquil, on the basis of any emergency situation to ensure the security of citizens. The financing of private companies by the Guayaquil municipality was not regarded by the Government as a loss by the State of its monopoly on the use of force because that decision had been authorized by the Ministries of Government and of Defence and registered by the National Police. The Government considered inherently governmental the functions of national defence and security; the management of foreign policy; international relations; economic policy; the State tax system; the management of foreign debt; and other functions which the Constitution and international conventions specifically excluded from decentralization.

49. In a letter dated 26 July 2007, the Government of El Salvador informed the Working Group of its national legislation and highlighted the Law against Acts of Terrorism, the Law for the Protection of Victims and Witnesses, the Law against Organized Crime, the Law on Private Security Services and the Penal Code as relevant in combating mercenarism. The Government also referred to the regional pacification process known as Esquipulas II, whereby, in 1995, Presidents of Central American countries signed the Framework Treaty on Democratic Security in Central America, which, inter alia, prohibited the participation of foreigners, organizations or groups in attempts to destabilize other States. The Government exercised vigilance over mercenarism, monitored and investigated the activities of private military and private security companies by means of the National Police. Administrative checks were conducted by the Ministry of Labour and Social Security, which received a copy of all work contracts.

50. In a letter dated 2 August 2007, the Government of Haiti informed the Working Group that it had not had a national armed force since 1994. The Government pointed out that the territory was protected by the National Police, supported by an intelligence service, and also referred to the United Nations Stabilization Mission in Haiti, which collaborated with the police to help prevent the recruitment, assembly, financing, training and transit of mercenaries. A disarmament commission established in Haiti had enabled the arrest and trial of heads of illegal armed bands, although there was no specific ban on private military and security companies. The Government informed the Working Group that defence functions and those pertaining to internal security and justice in Haiti could not be outsourced to the private sector.

E. Western Europe and North America

51. As of 10 August 2007, the Working Group had received and welcomed responses from the following Member States in Western Europe and North America: Greece, Switzerland and the United Kingdom of Great Britain and Northern Ireland.

52. In a letter dated 27 June 2007, the Government of Greece informed the Working Group that only Greek citizens were recruited, with the sole and exclusive mission of serving in and satisfying the needs of the Greek armed forces. The Government pointed out that all recruitment, training, hiring or financing of mercenaries by private companies offering military and security consultancy was regulated by the relevant provisions of current legislation, such as those pertaining to the military service of Greek citizens, financial crimes and the transit of foreign armed forces.

53. In a letter dated 19 July 2007, the Government of Switzerland stated that only a small percentage of employees of private military companies could be considered mercenaries. The Government informed the Working Group that, while guaranteeing public order was the responsibility of the State, under Swiss law, privatization was possible for marginal sectors of police security activities; criteria were applied to determine whether a function could be assigned to the private sector. The Government was not planning to privatize army functions, although private companies could be engaged for logistical support and other services not linked to the use of force and subject to adequate surveillance by the authorities. The Government pointed out the measures taken to harmonize regulations concerning the activities of private security companies in all cantons; the Confйrence des commandants des polices cantonales de Suisse was starting to elaborate measures in this area. The Federal Council had also asked the Federal Department of Justice and Police to examine the possibility of setting minimum standards for private security companies and to examine issues of authorization and registration.[11] One interdepartmental working group was examining a regulation for the federal authorities on minimum standards, and was preparing an Ordinance on the criteria by which the Swiss Confederation engaged private security companies. A second interdepartmental working group was assessing a registration requirement for private security companies that might use Switzerland as a base for operations abroad in conflict or problematic zones. The Government informed the Working Group that, following its study, the interdepartmental working group would examine the issue of requiring those companies to obtain an authorization or licence.

54. In a letter dated 15 May 2007, the United Kingdom of Great Britain and Northern Ireland informed the Working Group that, under the Foreign Enlistment Act of 1870, it was an offence in certain circumstances for a citizen, without licence of her Majesty, to enlist in the armed forces of a foreign State which was at war with another foreign State, if the latter was at peace with the United Kingdom, or for any person in the United Kingdom to recruit any person for such service. The Government was not aware of any case in which it had assisted in prosecutions in another country for mercenary activity. The Government considered it difficult to mount a successful prosecution for the offence created by the International Convention, particularly in the light of the need to establish an individual’s motivation beyond reasonable doubt, and had no plans to become a party to the Convention. Concerning plans for the regulation of private military or security activities, the Government referred to its 2002 green paper entitled “Private military activities: options for regulation”, which had been followed by a more detailed review of policy options in the second quarter of 2005. The Government informed the Working Group that it was still considering the way forward.

IV. International and regional developments

55. The Working Group continues to promote universal accession to the International Convention against the Recruitment, Use, Financing and Training of Mercenaries as the only global instrument dedicated to addressing mercenarism. It welcomes the fact that the Governments of Cuba and Peru have, in the past year, deposited the instrument of accession with the Secretary-General. The Working Group notes that there are now 30 States parties to the Convention: Azerbaijan, Barbados, Belarus, Belgium, Cameroon, Costa Rica, Croatia, Cuba, Cyprus, Georgia, Guinea, Italy, Liberia, the Libyan Arab Jamahiriya, Maldives, Mali, Mauritania, Moldova, New Zealand, Peru, Qatar, Saudi Arabia, Senegal, Seychelles, Suriname, Togo, Turkmenistan, Ukraine, Uruguay and Uzbekistan (see annex). The Working Group takes note of and welcomes indications of action towards acceding to the International Convention by Algeria, Armenia, Bangladesh, Ecuador, El Salvador, Ghana, Haiti, Honduras, Lebanon, Madagascar, Mauritius, Morocco, the Sudan, Tunisia, Venezuela (Bolivarian Republic of) and Yemen. The Working Group reiterates its availability to advise on and support these processes.

56. As part of its consultations with regional and other intergovernmental organizations, and in order to study regional standards and developments, in May 2007, the Working Group addressed a questionnaire concerning its mandate and activities. As of 16 August 2007, it had received and welcomed responses from the Association of Southeast Asian Nations, the Collective Security Treaty Organization, the Commonwealth, the Commonwealth of Independent States, the Council of Europe and the North Atlantic Treaty Organization.

57. In a letter dated 5 June 2007, the Collective Security Treaty Organization informed the Working Group that issues relating to mercenary activities were outside the mandate of the organization, and stated that the provision of security, including that on a collective basis, inherently could not be performed by the private sector.

58. In a letter dated 11 June 2007, the Council of Europe informed the Working Group that the Council for Police Matters had completed its report on the regulation of private security services, in which it analysed the lack of national legislation regulating the activities of private security companies in Council of Europe member States. The Working Group takes note of reference to a motion for a resolution in October 2004, when several members of the Parliamentary Assembly of the Council of Europe suggested that the expediency of a convention against the recruitment, use, funding and training of mercenaries should be considered, while noting also that that suggestion had not led to further action. The Council of Europe referred to its Parliamentary Assembly recommendation 1713 (2005) on democratic oversight of the security sector in member States, in which the Assembly noted that regulations should include provisions on parliamentary oversight, monitoring mechanisms, licensing provisions and means to establish minimal requirements for the functioning of private companies. The Working Group notes that in an explanatory memorandum to that recommendation, the Assembly declared that the outsourcing of intelligence-gathering to private companies (for example, Internet or mobile phone companies) should be done on the basis of law and be subject to the approval of Parliament.

59. In a letter dated 15 June 2007, the Council of the Interparliamentary Assembly of Member Nations of the Commonwealth of Independent States (CIS) informed the Working Group that there was evidence of foreign mercenary involvement in armed conflicts in the territories of the member nations of the Commonwealth and pointed out that such persons taking part in combat operations were part of illegal armed units and their activities were not legitimate. The Council referred to the unanimous adoption of a model law on counteracting mercenarism by the Council in November 2005 and described the indirect effect of that model law and the need for supplementary legislation at the national level. The Council also stated that, during work on improving international legal standards to combat mercenaries, special conditions for making legal, conceptual and practical distinctions between the prohibited forms of military mercenary and the permitted legitimate activity of private companies offering military and security services should be established. The Council also believed that programmes of social reintegration of former soldiers should be treated as an effective element of prevention measures. In the light of the transnational character of the market for private military services, the Council reiterated the importance of international cooperation and suggested that common databases should be established and experience in legislative and law enforcement practices in combating mercenary activities should be exchanged.

60. In a letter dated 28 June 2007, the Association of Southeast Asian Nations (ASEAN) informed the Working Group that ASEAN had no mandate to deal with the subject matter.

61. In a letter dated 3 July 2007, the Commonwealth Secretariat informed the Working Group that it had no explicit regulations, restrictions or oversight with regard to the recruitment, training, hiring or financing of individuals or companies as mercenaries. The Commonwealth Secretariat, however, recognized and endorsed the consensus decisions adopted by the United Nations to combat the activities of mercenaries, which it viewed as an infringement on the authority and sovereignty of States and legitimate Governments. The Commonwealth would therefore support all efforts to combat those activities.

62. In a letter dated 11 July 2007, the North Atlantic Treaty Organization (NATO) informed the Working Group that, as a matter of policy, NATO did not employ mercenaries, nor did it employ private military and security personnel, if they were understood to perform military functions that could involve combat. It also informed the Working Group of a policy to govern the use of contractor support to operations, which was agreed by the North Atlantic Council on 26 January 2007. NATO had the view that contractor support to operations enabled competent commercial entities to provide a portion of deployed support, so that such support was assured for the Commander and optimized the most efficient and effective use of resources. It also pointed out that the agreed NATO policy made clear that contractor support was not applicable to combat functions, but rather to a wide range of technical and support functions. According to that policy, in an international armed conflict zone, contractors should be treated as civilians accompanying the force and must not take a direct part in hostilities. NATO stated that most allies understood this to preclude the employment by NATO of private security companies for anything other than providing security services for static installations that would not normally be subject to the threat of military action.

63. The Working Group has also been informed and consulted with regard to the Swiss Initiative in Cooperation with the International Committee of the Red Cross to Promote Respect for International Humanitarian Law and Human Rights Law with regard to Private Military and Security Companies Operating in Conflict Situations.[12] In a letter dated 19 July 2007 and in documentation submitted subsequently, on 7 August 2007, the Government of Switzerland informed the Working Group on the Initiative, including associated workshops held in January and November 2006. The Working Group notes that this Government-driven process is not intended to legitimize the use of private military and security companies, but has three objectives: (a) to contribute to the intergovernmental discussion on the issues raised by the use of private military and private security companies; (b) to reaffirm and clarify the existing obligations of States and other actors under international law, in particular under international humanitarian law and human rights law; and (c) to study and develop good practices, regulatory models and other appropriate measures at the national and possibly regional or international levels, to assist States in respecting and ensuring respect for international humanitarian and human rights law. The Working Group extends its cooperation to this Initiative and hopes it will contribute to the consideration by States of appropriate national regulatory measures, including States which engage the private military and private security companies, those in which private military and private security companies are based and those with private military and private security companies operating on their territories.

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