Right of peoples to self-determination 1 страница

Sixty-fourth session

Item 70 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

  * A/64/150.

The Secretary-General has the honour to transmit to the members of the General Assembly, in accordance with General Assembly resolution 63/164 and 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 on the question of 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 in July 2005 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.

From April 2009, the Working Group has been headed by its Chairperson-Rapporteur, Shaista Shameem (Fiji), and its members are Najat Al-Hajjaji (Libyan Arab Jamahiriya), Amada Benavides de Pйrez (Colombia), Josй Luis Gуmez del Prado (Spain) and Alexander Nikitin (Russian Federation).

The present report is prepared in accordance with paragraph 20 of General Assembly resolution 63/164.

Section I of the report introduces its contents, section II outlines the activities undertaken by the Working Group, including its work on a possible new draft international convention on the regulation of private military and security companies. Section III presents some of the findings and conclusions of the field missions the Working Group conducted in Afghanistan and the United States of America, while section IV summarizes the second regional consultation for Eastern European and Central Asian countries held in October 2008. Section V refers to actions taken by the Working Group under the communications procedures, and section VI addresses the Working Group’s future activities. Section VII contains its conclusions and recommendations.

The report contains as an annex, the status of the 1989 International Convention against the Recruitment, Use, Financing and Training of Mercenaries as at 2 July 2009, with 17 signatories and 32 State parties.

Contents

			Page
I. Introduction..................................................................
II. Activities of the Working Group
A. Fourth to seventh sessions of the Working Group..................................
B. Elaboration of a draft convention..............................................
C. Other activities
III. Country visits.................................................................
A. Visit to Afghanistan.........................................................
B. Visit to the United States of America
C. Follow-up to visits..........................................................
D. Other missions in preparation.................................................
IV. Regional consultations..........................................................
V. Communications..............................................................
VI. Future activities
VII. Conclusions and recommendations.................................................
Annex
Status of the International Convention against the Recruitment, Use, Financing and Training of Mercenaries as at 2 July 2009..............................................

I. Introduction

1. At its sixty-first session, the Commission on Human Rights, by its resolution 2005/2, decided 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. From April 2009, the Working Group has been headed by its Chairperson-Rapporteur, Shaista Shameem (Fiji), and its members are Najat Al-Hajjaji (Libyan Arab Jamahiriya), Amada Benavides de Pйrez (Colombia), Josй Luis Gуmez del Prado (Spain) and Alexander Nikitin (Russian Federation). From April 2008 to the end of March 2009, Alexander Nikitin (Russian Federation) was the Chairperson-Rapporteur of the Working Group.

2. At its tenth session, the Human Rights Council requested the Working Group, in its resolution 10/11, to: (a) consult with intergovernmental, non-governmental organizations, academic institutions and experts on the content and scope of a possible draft convention on private companies offering military assistance, consultancy and other military security-related services on the international market, and an accompanying Model Law, and other legal instruments; (b) 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 transmit their replies to the Working Group; (c) report to the fifteenth session of the Human Rights Council on the progress achieved in the elaboration of the draft legal for proper consideration and action. Since the adoption of the new resolution, the Working Group has concentrated its effort on drafting elements of a possible draft convention and consulted with a wide range of non‑governmental organizations (NGOs), academic institutions and experts on the content and scope of this possible new legal instrument.

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

4. Pursuant to its mandate, the Working Group has continued to monitor mercenaries, mercenary-related activities in all their forms and manifestations, as well as to study the effects of the activities of private companies offering military assistance, consultancy and security services on the international market on the enjoyment of human rights. The Working Group notes that its mandate and work have steadily evolved in the recent years to reflect the increasing worldwide attention to the growing number of private military and security companies and the wide scope of their activities as well as to the growing concern regarding a lack of transparency and accountability of these companies and their impact on the enjoyment of human rights. Despite limited reports on individual mercenaries fighting in armed conflict for profit and in some cases with the aim of overthrowing a legitimate Government, the Working Group has gathered information over the last few years on situations where private security contractors legally working in a country have been involved as individuals in illegal mercenary activity in another country. The Working Group believes that a new international legal instrument would help to define those activities that can legally be carried out by private military and security companies according to international law from the activities that should remain essential governmental functions and could not in any circumstances be outsourced.

5. During the period of review, the Working Group held four sessions, including its seventh session, held in New York from 27 to 31 July 2009, undertook visits to Afghanistan and to the United States of America and convened a regional consultation for Eastern European and Central Asian countries on the effects of activities of private military and security companies on the enjoyment of human rights in the region and on the steps taken towards regulation and oversight. The Working Group has also sent letters of allegation to Governments regarding specific incidents and alleged human rights violations.

6. The Working Group noted that the use of private military and security companies worldwide continued to increase gradually over the last year, with up to 80 per cent of all such companies registered in the United Kingdom and the United States.[1] The majority of these companies were operating in Iraq and Afghanistan and were conducting a wide range of activities, from static security to escort of convoys, training and intelligence services.

7. Given the concentration of these companies in a handful of countries of origin/home States (States of nationality of a private military and security company, that is, where such a company is registered or incorporated, namely, the United States and the United Kingdom) or receiving countries/territorial States (States on whose territory these companies operate, namely, Iraq and Afghanistan), some argue that the phenomenon does not represent an international concern and will decline with the gradual withdrawal of the United States and other international troops from Iraq and Afghanistan. The Working Group believes that given the lucrative character of the industry, which operates in armed conflicts, post-conflict situations and troubled areas where extractive transnational corporations function, the phenomenon is likely to increase, diversify and spread to more countries. Following visits to Ecuador in 2006, and Chile, Peru and Fiji in 2007, the Working Group already reported on the recruitment of a large number of independent contractors in these countries by foreign companies contracted by the United States or the United Kingdom Governments and some of the consequences, including the lack of control by the home countries of these contractors as well as often the poor working conditions and lack of protection for these third country nationals.[2] The presence and activities of these companies are also growing rapidly on the African continent where some companies are, among other things, providing training of security forces in some countries. Often, contracts are settled between donor countries and private military and security companies without the possibility for national authorities and civil society being able to participate in the decision-making regarding these contracts and to play their constitutional and legitimate roles in democratic governance of the security sector.[3]

8. The Working Group is concerned by the growing trend towards privatization of military and security services and its consequences for the public. As suggested by the Human Rights Council in its resolution 7/21, the Working Group recommends a discussion at the international level on the fundamental question of the role of a State as holder of the monopoly of the legitimate use of force, with the objective of facilitating a critical understanding of the responsibilities of the different actors, including private military and security companies, and their respective obligations for the protection and promotion of human rights and in reaching a common understanding as to which additional regulation and controls are needed at the international level. In its work on a possible draft convention on the regulation of private military and security companies, the Working Group is discussing a number of elements of what they consider to be inherently governmental functions that should not under any circumstances be outsourced to non-State entities under a new legally binding instrument. Pursuant to the Human Rights Council resolution 10/11, these elements will be submitted to Member States for their consideration.

9. The Working Group remains concerned at the impact of private military and security companies on the enjoyment of human rights and, in particular, concerning accountability in case of criminal offences and human rights violations as well as access to remedy for victims of these violations. Too often proper investigations of incidents involving these companies are not launched owing to insufficient evidence or to the difficulty of investigating in zones of conflict, and due to the fact that in a situation when a lawsuit is filed, it can take years before victims obtain some form of redress. Some Governments still have special agreements with private military and security companies granting them immunity from prosecution. Situations where armed individuals are not subject to the control or the laws of the State have led to dramatic events and are unacceptable. No one can be immune from prosecution for criminal offences and human rights violations.

10. Proper vetting and background screening of personnel of employees is crucial, as was demonstrated by the recent shooting by a British contractor of colleagues from the same company, ArmorGroup, in Iraq in early August 2009. The contractor was suffering from severe post-traumatic stress and had earlier been dismissed while working in Iraq by the security firm Aegis for “extreme negligence” and was awaiting trial for assault, having already been convicted of three other crimes, including robbery, possession of ammunition and public order offences.[4] The Working Group is also reviewing conditions of employment of third-country nationals employed by private military and security companies, and is disturbed by numerous testimonies of individual contractors, who were not provided with adequate working conditions, protection and insurances and who, in some instances, had their passports and travel documents confiscated, leaving them with no means to return home. Finally, the Working Group deplores the lack of information accessible to the public on the number of private military and security companies operating in conflict or post-conflict zones, including information on the companies, the number and nationality of personnel, casualties, number and types of weapons and vehicles as well as on the activities for which they are contracted. The Working Group calls for further transparency and information on those contracts, within legitimate limitations such as national security and privacy.

11. Pursuant to General Assembly resolution 63/164, the Working Group submits its fourth report to the General Assembly, for consideration at its sixty-fourth session.

II. Activities of the Working Group

A. Fourth to seventh sessions of the Working Group

12. At its fourth session, held in New York from 2 to 5 September 2008, the Working Group held discussions with Member States, United Nations departments, including the Department of Peacekeeping Operations, the Office of Legal Affairs and the Office for Disarmament Affairs, representatives of civil society, academics and representatives of private military and security companies. In particular, the fourth session was an occasion to discuss with relevant actors the key principles for a system of international regulation of private military and security companies contracted to Governments.

13. At its fifth session, held in Geneva from 15 to 19 December 2008, the Working Group considered a number of communications and country situations, and met with representatives of the Permanent Missions of Honduras and Ecuador to discuss follow-up to the Working Group’s visits to these countries. The Working Group also met with representatives of the Democratic Republic of the Congo to discuss the political and social situation in the eastern part of the country and the presence of militias and private military and security companies. The delegation welcomed the request of the Working Group to conduct a visit to the country. In addition, the Working Group held meetings with United Nations system agencies and organs, the Office of the United Nations High Commissioner for Human Rights (OHCHR), the International Committee of the Red Cross (ICRC), academics, NGOs and an association of private military and security companies.

14. From 30 March to 3 April 2009, the Working Group held its sixth session in Geneva. Ms. Shaista Shameem was elected Chairperson by consensus. In line with the request of the Human Rights Council (resolution 10/11), the Working Group devoted several meetings to discuss elements for a possible draft convention, its scope, content and structure. The Working Group also discussed its workplan regarding the process of consultation on the draft convention with NGOs, academics and experts. The Working Group met with representatives from the Swiss Foreign Affairs Department on the follow-up to the Montreux Document and discussed the Swiss Initiative for an international code of conduct for private military and security companies (see A/HRC/10/14, paras. 42-51). The complementarity of their respective initiatives was underlined and it was agreed to continue working in close cooperation, with the Working Group concentrating its work on a draft international binding legal instrument. The Working Group also met with representatives of the Western Europe and Others Group and briefed them on its mandate and current activities. The Working Group recalled the human rights violations for which private military and security companies have been responsible so far and the lack of accountability and redress for victims in the current system. They also stressed the importance of regular interaction with the Western Europe and Others Group and hoped for increased support for their mandate and activities. The Chairperson of the Western Europe and Others Group recommended that the Working Group brief them at their next session in Geneva. Finally, the Working Group was briefed on the initiative of the United Nations Inter-Agency Security Management Network to develop a United Nations-wide policy on security and on contracting private security companies. The Working Group welcomes this initiative, which aims at defining the situations and rules regarding the hiring of armed guards as well as the type of personnel that can be recruited following rigorous vetting and training. It is crucial for the United Nations to have clear and transparent system-wide policy, guidelines, and oversight mechanisms on the use of private security contractors.

15. From 27 to 31 July, the Working Group held its seventh session in New York. A significant part of the session was devoted to discussing elements for a possible draft convention, its scope, content and structure. The Chairperson of the Working Group participated as a panellist in a policy forum on the regulation of private military and security companies, organized by the International Peace Academy. The Academy also organized a closed-door workshop for the Working Group with some 30 experts, academics and representatives of NGOs and the industry for the purpose of discussing the elements of a possible draft convention. The preliminary discussion with these experts was valuable and served to fine-tune the Working Group’s work in progress on the convention. In addition, the Working Group considered a number of situations and communications and held meetings with United Nations system agencies and departments based at Headquarters in New York. It also received information on the continuing recruitment of mercenaries, including children, in the Great Lakes region of Africa and in West Africa. The Working Group will continue to monitor these allegations and study the causes and the measures taken by the concerned Governments to put an end to these activities.

B. Elaboration of a draft convention

16. With the adoption on 20 March 2009 of a new Human Rights Council resolution, by which the Working Group was requested, inter alia, to (a) consult with intergovernmental, non-governmental organizations, academic institutions and experts on the content and scope of a possible draft Convention on private companies offering military assistance, consultancy and other military security-related services on the international market, and an accompanying Model Law, and other legal instruments; and (b) 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 convention and transmit their replies to the Working Group, the Working Group concentrated its efforts since March on discussing the content and scope and elaborating a draft of such a convention.

17. In the view of the Working Group, the purpose of the draft convention is to reaffirm and strengthen the principle of State responsibility for the legitimate use of force and to identify those functions which are, under international law, inherently governmental and cannot be outsourced to non-State entities as a matter of public interest. The draft convention also seeks to promote cooperation among States regarding licensing and regulation of the activities of private military and security companies in order to more effectively monitor and address challenges to the full implementation of human rights obligations. The draft convention devises mechanisms to ensure proper national and international oversight and monitoring of the activities of such companies as well as to investigate reports of abuses and violations of human rights and international humanitarian law.

18. The draft text of the convention was circulated in July 2009 to some 250 experts, academics and NGOs worldwide for comments. On 29 July, the Working Group held a closed workshop with selected experts to discuss the content and scope of the draft convention. The Working Group was pleased to receive positive feedback from the NGOs and academics attending the workshop and responded to many questions and observations on the philosophy, scope and detailed elements of the draft convention. The Working Group is now in the process of consolidating the draft convention on the basis of the comments received orally or in writing and expects to circulate it to Member States in early 2010 for their input.

C. Other activities

19. The Academic Network set up in Bogota in January 2007 to study and monitor the activities of mercenaries and private military and security companies in Latin America continued its activities during the period under review. On 7 and 8 May 2009, a member of the Working Group, together with the Academic Network organized and participated as a keynote speaker in a seminar held in Bogota on the topic “Mercenaries and private military and security companies in Latin America”. The seminar gathered a large participation, including members of the Colombian Senate, private military and security companies operating in Colombia, international experts and journalists. On 25 July, the Colombian Academic Network met again at the initiative of a member of the Working Group to discuss the elements of the draft convention on the regulation, oversight and monitoring of private military and security companies. Staff of OHCHR and ICRC in Colombia also attended the meeting as observers. The conclusions and recommendations were presented at the seventh session of the Working Group. Other consultations with academics and NGOs in the Latin American region are envisioned through the Academic Network.

20. The Swiss Government, together with the Geneva Centre for the Democratic Control of Armed Forces, organized a series of events on the self-regulation of private military and security companies, to which the Working Group was associated. A member of the Working Group attended two of the three workshops organized by the Centre in March and April 2009 on the topic “Working towards an international code of conduct for private military and security companies”. The first workshop was aimed at the leading international private military and security companies and industry associations, the second gathered representatives of civil society and research institutions, while the third congregated representatives of Governments, regional organizations and the United Nations. The workshops aimed at identifying the elements essential to an effective international code of conduct for the security industry.

21. Two members of the Working Group also participated in a Wilton Park Conference held in Nyon, Switzerland, from 4 to 6 June. The Conference was organized by the Swiss Federal Department of Foreign Affairs, in cooperation with the Geneva Centre for the Democratic Control of Armed Forces and the Geneva Academy of International Humanitarian Law and Human Rights to discuss the initiative to establish a possible international code of conduct for private military and security companies.[5] It gathered representatives of major private military and security companies, industry associations in the United States, United Kingdom and South Africa, interested Governments, including those that contract such companies, international governmental and non-governmental organizations and other legal and human rights experts to discuss whether and how to codify standards for the operation of all private military and security companies in compliance with human rights and international humanitarian law. The conference also sought to examine how self-commitment by the private military and security industry can be effectively monitored and enforced.

22. The Working Group took an active part in the consultations on a possible international code of conduct for private military and security companies. The Working Group hopes that the views of the Working Group, as well as those of NGOs and experts expressed at the meetings would be fully integrated when setting up the mechanism. The Working Group believes that such an international code of conduct should be accompanied by “an independent and authoritative ‘watchdog’”, as recommended by some participants, which would be able to offer a trustworthy and effective complaint and redress mechanism for victims.

23. The Working Group welcomes the Swiss Initiative insofar as it represents a first step towards the regulation, oversight and monitoring of the activities of private military and security companies. The Working Group believes, nevertheless, that self-regulation is not sufficient and should be accompanied by national regulations, and an international binding instrument establishing an independent international monitoring mechanism.

24. In addition to regular press releases before and after country visits or Working Group sessions, the Working Group issued a press statement on 29 April 2009, expressing its grave concerns at reports that a group of five persons, including foreigners, were involved in a plot against the Bolivian Government. On 16 April, the Bolivian police launched an operation in the eastern city of Santa Cruz against a group that were allegedly planning assassination attempts against the democratically elected President and other senior officials of the Government. During a police operation, three individuals were killed, while two others were arrested. Communications to the Bolivian Government as well as to the countries of origin of the nationals allegedly involved in the plot were sent to seek further information regarding the incident. The Working Group would like to thank those countries that have replied to its communication. It will continue to monitor closely the situation in the Plurinational State of Bolivia, and calls upon all Governments concerned to provide the Working Group with more detailed information as the investigation into the incident proceeds.

III. Country visits

A. Visit to Afghanistan

25. A delegation of the Working Group, composed of two of its members, visited Afghanistan from 4 to 9 April 2009. Owing to the volatile security situation in the country, the Working Group was only able to visit Kabul and Jalalabad, in the eastern province of Nangarhar. The Working Group considered information on the number and types of private military and security companies operating in the country as well as on the scope and extent of their activities. It focused in particular on the system of regulation of activities of private military and security companies registered in Afghanistan, the requirements for transparency and accountability of these companies and their personnel, and at instances that might have given rise to impunity of contractors for violations of human rights. The Working Group also looked at the issue of access to effective remedies for the victims of violations.

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