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56. In the course of 2006 and 2007, the Working Group has monitored the activities of private companies offering military assistance, consultancy and security services at the international level. It has conducted field missions to Chile, Ecuador, Fiji, Honduras and Peru which have permitted it to identify how PMSCs recruit, train, use or finance former military personnel and ex-policemen to operate in armed conflict or highly dangerous post-conflict situations. It has also studied emerging issues, manifestations and trends regarding mercenaries or mercenary-related activities and their impact on human rights. On the basis of this information, it is of the opinion that many of such manifestations are new modalities of mercenary-related activities.
57. The proliferation of PMSCs in the world is a direct consequence of the outsourcing and privatization by member States of many military and security functions. A large number of these companies are the supply side for contracts granted by the Department of Defense or the State Department of the United States of America in connection with low‑intensity armed conflicts or post-conflict situations such as in Afghanistan, Colombia and Iraq. To implement their contracts and at the same time make the most lucrative profits, some of these transnational companies, through subsidiaries or hiring companies, create, stimulate and fuel the demand in developing countries. Former military personnel and ex-policemen are recruited as “security guards”, but once in low-intensity armed conflicts or post-conflict situations, they become in fact private soldiers militarily armed. Provisions in national legislations granting immunity to PMSC personnel can easily become de facto impunity, with these private soldiers being only accountable to the company employing them. Some Governments appear to consider these individuals as
neither civilians nor combatants, though heavily armed; these individuals are the new modalities of mercenarism. They might also be easily associated with the unclear concept of “irregular combatants”. They often encounter contractual irregularities, poor working conditions, failures in obtaining basic needs and problems to obtain financial compensation for injuries received.[81]
58. The Working Group is concerned at the low state of ratifications and accessions of the International Convention (30 States parties), a major tool available at the international level which promotes the control of States in the outsourcing of functions regarding the use of force.
59. The Working Group is also concerned at the lack of regulations at the regional and national levels regarding private military and security companies which often operate without effective oversight and accountability. Weak or insufficient domestic legislation, regulation and control of PMSCs encourage these transnational companies to seek to recruit former military personnel and ex-policemen from other countries as “security guards” in low-intensity armed conflicts. Because of the difficulty of war-torn States to regulate and control PMSCs, a significant part of the responsibility falls on States from where these transnational companies export military and security services to regulate and control these companies. The Working Group is also concerned that in spite of drawing the attention of the Governments, including in some of the countries in which it has conducted field missions, the recruiting of former militaries and ex-policemen by PMSCs for employment as “security guards” in zones of armed conflict such as Iraq seems to continue.
60. To this end, the Working Group makes the following recommendations:
- Calls upon all States that have not yet done so to consider taking necessary action to accede to or ratify the International Convention against the Recruitment, Use, Financing and Training of Mercenaries and incorporate relevant legal norms into their national legislation. Within this context, the Working Group considers that a model law could be elaborated with a view to facilitating accession of those States which wish to become party to the Convention, by indicating steps to be taken in order to adapt international norms into domestic legislation;
- Recommends regional and other intergovernmental organizations, in particular the European Union and the Organization of American States, to elaborate a common system to regulate private military and security companies exporting their services abroad;
- Encourages States to incorporate relevant international legislation on these issues, as well as relevant regional legislation where such regional frameworks exist (e.g. African Union, Economic Community of West African States, Commonwealth of Independent States), into national law;
- Recommends that, in order to ensure that the military assistance, consultancy and security services offered by private companies at the international level neither impede the enjoyment of nor violate human rights, Governments of States from which these private companies export such services should adopt legislation and set up regulatory mechanisms to control and monitor their activities, including a system of registering and licensing which would authorize these companies to operate and allow them to be sanctioned when the norms are not respected;
- Recommends that States outsourcing activities relating to military assistance, consultancy and security services to private military and security companies should demand the authorization of States from which former military personnel and policemen are recruited by such companies to work in armed conflict or post-conflict situations before the recruitment takes place;
- Urges Governments of States from which private military and security companies export military assistance, consultancy and security services to avoid granting immunity to these companies and their personnel;
- Encourages Governments which import the military assistance, consultancy and security services provided by private companies to establish regulatory mechanisms for the registering and licensing of these companies in order to ensure that imported services provided by these private companies neither impede the enjoyment of human rights nor violate human rights in the recipient country;
- Encourages Governments, when establishing such regulatory systems of registration and licensing of PMSCs and individuals working for them, to include defining minimum requirements for obligatory transparency and accountability of firms, background screening and vetting of PMSC personnel, ensure adequate training of PMSC personnel on international human rights and international humanitarian law, as well as rules of engagement consistent with applicable law and international standards, and to establish effective complaint and monitoring systems including parliamentary oversight. Such regulatory systems should include thresholds of permissible activities, and States should impose a specific ban on PMSCs intervening in internal or international armed conflicts or actions aimed at destabilizing constitutional regimes;
- Encourages States from which former military personnel and ex-policemen are being recruited by private security companies to be deployed to low-intensity zones of armed conflict or post-conflict situations to take the necessary measures to avoid such mercenary recruitment and to issue public statements and apply policies aimed at discouraging such practices;
- Recommends that United Nations departments, offices, organizations, programmes and funds establish an effective selection and vetting system and guidelines containing relevant criteria aimed at regulating and monitoring the activities of private security/military companies working under their respective authorities. They should also ensure that the guidelines comply with human rights standards and international humanitarian law;
- Recommends that regional governmental consultations followed by a high-level round table be convened under the auspices of the United Nations, to discuss the fundamental question of the role of the State as holder of the monopoly of the use of force. Such meetings will facilitate a critical understanding of responsibilities of the different actors, including PMSCs, in the current context and their respective obligations in reaching a common understanding as to which additional regulations and controls are needed at the international level;
- The Working Group recommends that in order to fulfil the complex mandate and challenges given to it under resolution 2005/2 of the Commission on Human Rights and assumed by the Human Rights Council, as well as by General Assembly resolution 61/151, it be allowed to hold three sessions per year, two in Geneva and one in New York;
- Requests the Human Rights Council to support the activities proposed by the Working Group by including them in a relevant resolution.
-----
[1] See http://www.businesshumanrights.org/Categories/UNintlorgs/UNintergovernmentalorgs/ UN/UNWorkingGrouponuseofmercenaries.
[2] See http://www.unhchr.ch/huricane/huricane.nsf/view01/1D59617B2E30442FC125728
E003539CD?opendocument.
[3] This report will be issued as an addendum to the present one.
[4] Idem.
[5] Idem.
[6] By letter of 19 April 2007, the Government of Iraq stated that “the security situation in Iraq would not allow the working group to do their work in an effective manner”.
[7] For a summary of this meeting, see www.reports-and-materials.org/
Ruggie-special-procedures-19-Jun-2007.pdf.
[8] The workshop produced the Lund Statement, which was issued as Human Rights Council document A/HRC/5/18.
[9] For a summary note of this dialogue see http://www.business‑humanrights.org/
Links/Repository/978963/jump.
[10] H. Wulf, “Reconstructing the Public Monopoly of Legitimate Force”, in Private Actors and Security Governance, A. Bryden, M. Caparini (eds.), DCAF, 2006.
[11] E. Krahmann, “Private Firms and the New Security”, 43rd Annual Convention, International Studies Association, New Orleans, 2002.
[12] Anna Leander, “Global Ungovernance: Mercenaries, States and the Control over Violence”, Copenhagen Peace Research Institute, 2001.
[13] G. Carbonnier, “Privatisations, sous-traitance et partenariats public-privé: charity.com ou business.org?”, IRRC December, 2004, vol. 86, No. 856.
[14] H. Munkler, “The new wars”, Polity Press, Cambridge, 2005.
[15] H. Munkler, ibid.
[16] Robert Y. Pelton, “Licensed to Kill”, Crown Publishers, New York, 2006, p. 342.
[17] In the privatization of warfare and the utilization of private security companies to protect multinational extractive corporations one can find elements of bygone historical periods, the use of force by non-State actors. J.E. Thompson, Mercenaries, Pirates and Sovereigns: State‑building and Extraterritorial Violence in Early Modern Europe, Princeton University Press, 1994. In such situations, multinational corporations contract private security companies whose employees are often found involved in social conflicts with the local populations.
[18] E/CN.4/2000/NGO/148.
[19] H. Wulf, supra.
[20] G. Carbonnier, ibid.
[21] Publication of the International Peace Operations Association and the Peace Operations Institute, vol. 2, No. 4, January/February 2007, Washington.
[22] See www.sourcewatch.org.
[23] Center for Media and Democracy, sourcewatch.org; E. Krahmann, supra; R.Y. Pelton, supra.
[24] Figures given by the Pentagon, see: S. Fairnau “Cutting Cost, Bending Rules and a Trail of Broken Lives”, Washington Post, 29 July 2007.
[25] United States Government Accountability Office 2006 report; J. Scahill, “A very private army”, The Guardian, 1 August 2007.
[26] M. Caparini, “Regulation of PSCs: Legal and Policy Challenges”, United Nations Council of Human Rights, Parallel event co-hosted by Business and Human Rights Resource Center, 21 March 2007.
[27] Robert Y. Pelton, supra (p. 213). As of March 2005, there were over 20,000 foreign private military contractors in Iraq, P.W. Singer, “Outsourcing War”, Foreign Affairs, March 2005.
[28] Every month another 30,000 to 50,000 Iraqis flee their homes. Out of a population of 27 million, nearly 2 million Iraqis have been internally displaced and another 2 million are refugees in the Middle East, mostly in Jordan, Syrian Arab Republic, Turkey, Lebanon and Egypt: (Los Angeles Times, editorial, 20 May 2007). It is the greatest mass exodus of people ever in the Middle East and dwarfs anything seen in Europe since the Second World War. http://www.informationclearinghouse.info/article18097.htm. UNHCR figures: 2.2 million refugees and 750,000 IDPs.
[29] Antonio Giustozzi, “The privatization of war and security in Afghanistan: future or dead end?”, Economics of Peace and Security Journal, vol. 2 (1): 30-34, p. 31.
[30] Swisspeace, “The Impact of Private Military and Security Companies on the Local Population in Post-Conflict Countries. A Comparative Study for Afghanistan and Angola”, Bern, 2007 (draft and forthcoming report, on hold with the authors).
[31] A. Giustozzi, supra.
[32] During the first phase of the Plan only 400 United States militaries had been authorized to operate in Colombian territory, plus 400 civilian contractors authorized by the United States Congress. In October 2004, the Congress allowed the Government to increase its presence in Colombia up to 800 militaries and 600 civilians. See J.H. Torres, “Mercenaries in Colombia”, Seminar on Privatization of security and warfare and impacts on human rights, Geneva, 21 March 2007.
[33] J. Scahill, Blackwater: The Rise of the World’s Most Powerful Mercenary Army, Avalon, 2007.
[34] Robert Y. Pelton, supra, p. 4.
[35] J. Scahill, “A very private war”, The Guardian, 1 August 2007.
[36] Louis Hamsen, “Families sue Blackwater over deaths in Fallujah”, The Virginia Pilot, 6 January 2005, www.corpwatch.org; J. Scahill, “Blood is thicker than Blackwater”, The Nation, 1 May 2006.
[37] E. Krahmann, “Regulating Private Military Companies: What Role for the EU?”, Contemporary Security Policy, vol. 26, No. 1 (April 2005).
[38] In 2006, it acquired Kroll Security International, a London security company which operates in Iraq. Four of the British nationals kidnapped in Baghdad in May 2007 worked for GardaWorld. David Pallister, The Guardian, cited in Courrier International, 30 May 2007.
[39] “Nouveaux mercenaires: que fait la Suisse?”, Plateforme d’information humanrights.ch.
[40] See: www.bapsc.org.uk and www.sourcewatch.org. One of the major British PMSCs in Iraq allegedly supply hired Gurkhas, Fijian paramilitaries and former SAS veterans. See I. Traynor, “The privatization of war”, The Guardian, 10 December 2003.
[41] A former civil servant of the British Department for International Development.
[42] A/HRC/4/42/Add.1, para 33.
[43] This could exclude United States, British and Iraqi employees of PMSCs but not the Chileans, Colombians, Fijians, Filipinos, Hondurans, Nepali, Peruvians and others.
[44] The Working Group has observed similar or related clauses in employment contracts for Chileans by the company Neskovin, registered in Uruguay and recruiting for the company Blackwater in the United States of America, and Global Guards, registered in Panama and recruiting for the company Triple Canopy in the United States. Similar practices have involved contracts for Peruvians by the company Defion, recruiting for Triple Canopy, and Hondurans contracted by the company Your Solutions also recruiting for Triple Canopy.
[45] Most contractors do not provide health care for their employees, and care is not authorized at military facilities except when life is at stake. However, some routine health care has been provided to private contractors. W. Pincus, “Army Examines Possibility of Private Medical Contractor”, Washington Post, 3 September 2007.
[46] BBC, ‘‘Peru’s war zone workers”, http://www.bbc.co.uk/. R. Brooks, “Deniable, disposable casualties”, Los Angeles Times, 1 June 2007.
[47] Some 160,000 in mid-2007. According to the testimony of General B.R. McCaffrey before the House Armed Services Committee the Government has been “forced to use US and foreign contractors to substitute for required military functions”, Earthtimes.org, 31 July 2007.
[48] The Economist, London: 10 April 2004, vol. 371, Iss. 8370, p. 38.
[49] US Labor Department figures are based on compensation claims filed by the individual contracted or family members of those killed or incapacitated.
[50] US Department of Labor; D. Ivanovitch, “Information incomplete on contractors in Iraq”, Houston Chronicle, 8 August 2007; H. Witt, “770 civilian contractors among America’s hidden dead”, Chicago Tribune. The number given by the Brooking Institute for the same period is of 470 casualties.
[51] Also victims of the collateral damages of the conflict are truck drivers and many labourers from countries such as India, Nepal, Pakistan, Philippines, Sierra Leone and Sri Lanka who have also been deceptively recruited and trafficked to Iraq. See the article by W. Branigin, Washington Post, 27 July 2007.
[52] For the period 2003-2007, http://icasualties.org/oif/Civ.aspx.
[53] US Congressional Research Services, Report on Private Security Contractors in Iraq, 2007.
[54] T. Engelhardt, “The devil’s dictionary of war in Iraq”, The Financial Express, 26 April 2007.
[55] M. Caparini, supra. According to the Christian Science Monitor (18 July 2007), there are 180,000 contractors. There would be 630 companies working in Iraq on contract for the United States Government, with personnel from more than 100 countries. Scahill, supra.
[56] The Sarajevo Client Guidelines for the Procurement of Private Security Companies identifies best practices for post-conflict situations. See South Eastern and Eastern Europe Clearinghouse for the Control of Small Arms and Light Weapons (SEESAC), http://www.see.sac.org.
[57] Anna Leander, supra, p. 8.
[58] US Congressional Research Services, supra, p. 16.
[59] The aerial spraying of Glyphosate and other toxicity-enhancing adjuvents by DynCorp, to eradicate illicit coca leaves cultivation along the southern Colombian border with Ecuador would have caused a number of adverse health consequences, including genetic damage (A/HRC.4/42/Add.2, paras. 47-51).
[60] J.H. Torres, supra.
[61] A/61/341, paras. 69 and 71 and A/HRC/4/42, para. 35.
[62] J. Scahill, supra, Steve Fainaru, “For Hired Guns”, Washington Post, 15 April 2007.
[63] This is in addition to scores of gangs active in major Iraqi cities, Iraq Today, http://warnewstoday.blogspot.com/ visited on 20 August 2007.
[64] Information gathered from Human Rights Office Contribution to the UNAMI SitRep: 17‑23 September 2007.
[65] See Joshua Partlow, “State Depart. Convoy Attacked in Baghdad, Sparking a Shooting”, Washington Post, 17 September 2007; “The real story of Baghdad’s Bloody Sunday”, The Independent, 21 September 2007.
[66] Swisspeace, supra.
[67] A/HRC/4/42, para. 33.
[68] The United States Army would have recognized that two overlapping contracts to protect its Corps of Engineers in Iraq by a private army equivalent to three military battalions were costing millions of dollars in duplicate, Steve Fainaru, “Security Costs Soaring”, Washington Post, 12 August 2007.
[69] Sami Makki, “Sociétés militaires privées dans le chaos irakien”, Le Monde diplomatique, novembre 2004.
[70] Naomi Klein, “The failure is a new face of success”, The Guardian, 12 September 2007.
[71] S. Chesterman and Ch. Lehnardt, Eds., From Mercenaries to Market: The Rise and Regulations of PMC, Oxford University Press, 2007.
[72] For ICRC, a small number of PMSC employees operating in armed conflict or post‑conflict situations could be considered as combatants, some as mercenaries and the majority would be civilians who would lose protection under international humanitarian law when taking direct part in hostilities. See Emmanuela-Chiara Gillard, “Business goes to war: private military/security companies and international humanitarian law”, IRRC, vol. 88, No. 863, September 2006.
[73] The new low-intensity wars may last decades with no end in sight, H. Munkler, supra.
[74] A/61/341, para. 69. See also David Phinney, “From mercenaries to peacemakers?”, 29 November 2005, www.corpwatch.org; Steve Fainaru, “For Hired Guns”, Washington Post, 15 April 2007; J. Scahill, “A very private war”, The Guardian, 1 August 2007; R. Norton‑Taylor, “Afghanistan Close to Anarchy: Warns a General”, The Guardian, 21 July 2006.
[75] On 16 September 2007, according to UNAMI in the neighbourhood of Mansour in Baghdad, security contractors protecting a US State Department convoy which was attacked opened fire on civilians killing at least 11 persons, with security company helicopters firing into the streets resulting in civilian casualties and injuries.
[76] The information on the use of forbidden ammunitions was provided to the Working Group by a former military who had been employed as “security guard” in Iraq by a PMSC. There are reports of use of armour piercing-limited penetration (APLPs) ammunitions, which are blended metal bullets which go through steel and anti-bulletproof vests and that instead of passing through a human body they shatter creating untreatable wounds. Ibid, Scahill, p. 78. In March 2007, the United States military barred the Crescent Security Company from bases in Iraq after it was found with weapons prohibited for private security companies. See: Steve Fainaru, “Cutting costs, Bending Rules, And a Trail to Broken Lives”, The Washington Post, 29 July 2007.
[77] Emamanuela-Chiara Gillard, supra (p. 535).
[78] Such as the Fallujah incident of 2004 involving the deaths of four private guards working for Blackwater or the ambushing and kidnapping of five Crescent Security Group private guards, near Safwan on 16 November 2006. Steve Fainaru, “Cutting Costs, Bending Rules, And a Trail to Broken Lives”, The Washington Post, 29 July 2007.
[79] General comment No. 31 (2004) on the nature of the general legal obligations imposed on States parties to the Covenant, para. 8.
[80] For the status of the International Convention, please see annex I.
[81] A/HRC/4/42, paras. 49-50 and A/HRC/4/42/Add.1, para. 19.
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