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15. Towards the end of 2003, José Miguel Pizarro’s company Red Táctica Inc. began recruiting former Chilean military and police personnel to work as “independent contractors” in Iraq for the American private military company Blackwater. Red Táctica Inc., which was established in 2001 in the United States by José Miguel Pizarro Ovalle with other partners, was apparently responsible for setting up contacts between Latin American Governments and American weapons manufacturers. In Chile, Pizarro established a subsidiary known as
Grupo Táctico Chile. However, for the purposes of transactions with Blackwater and to avoid problems with the Chilean authorities, Pizarro, who conducted his business from Santiago, set up a company called Neskowin that was domiciled in Montevideo and whose president and chief executive officer was none other than Pizarro himself. Although former Chilean[7] military and police personnel were recruited to work for Blackwater in Iraq, the contracts they signed to work as “independent contractors” or “security guards” were subject to Uruguayan law. Moreover, the hiring location was not Santiago, Chile, but rather North Carolina (United States of America), where Blackwater has its headquarters. The first 150 Chileans recruited and trained by Blackwater at its base in Moyock, North Carolina, departed for Iraq in February 2004 in two separate groups of 77 each, bound for the destinations of Diwaniyah, Al-Hillah, Karbala and Basra. Prior to this, Pizarro had already demonstrated the military preparedness of the Chileans he had selected to Blackwater agents, who had travelled expressly from the United States to Chile, and who had attended several testing sessions in Chile referred to as “castings”. Convinced of the professionalism of the Chileans, Blackwater and Pizarro obtained one-year visas from the Embassy of the United States of America in Chile for the first two groups of Chileans, which included multiple entries in order for them to “attend meetings at Blackwater in Moyock, North Carolina”.
16. Without severing ties with Blackwater, in late 2004, Pizarro began working simultaneously with Triple Canopy, another American private military company. He recruited Chileans to work for Triple Canopy in Iraq or Afghanistan as “private guards” under the name of a different company than the one he used to contract for Blackwater - a company known as Global Guards Corporation, which he represented and which was domiciled in Panama and subject to the laws of that country. At that time, both the contracting and training of the Chileans selected by Pizarro were being conducted in Amman. There were differences in salaries as well: Blackwater was paying approximately US$ 3,000 a month, whereas Triple Canopy paid only about US$ 1,000 a month.
17. Through Neskowin in Uruguay and Global Guards in Panama, Pizarro was providing Blackwater and Triple Canopy, respectively, with “independent private security agents” to go work as “private security guards or armed guards” in Iraq, Jordan, Afghanistan and/or Kuwait - although they could conceivably be sent to any other location where those companies had operations. The Blackwater contracts indicate that they were signed in Moyock, North Carolina (United States of America) and the Triple Canopy contracts, in Amman (Jordan). Further down in the contracts, other clauses stipulate that: (a) the parties agree to resolve all differences, disagreements and disputes arising from the contract through the Arbitral Tribunal of Uruguay
(for Neskowin) and the Arbitral Tribunal of Panama (for Global Guards); and (b) the contract is subject to the laws of Uruguay (for Neskowin) and Panama (for Global Guards). By signing these contracts, Chileans were not only renouncing some of their most fundamental rights - such as the right to be subject to their country’s laws, given that its courts did not have jurisdiction - but were also, in effect, incapacitating themselves in the event they had to file a claim against the company.
18. In another of the clauses common to the two companies’ contracts, the guards acknowledge that they are offering their services “in a highly dangerous environment that poses a risk to their personal safety and/or integrity and that they freely give their consent and assume full responsibility for working in such conditions”. They also acknowledge that they will be working in “countries that are at war, in which there are occupation forces and pockets of resistance”. However, as stipulated in another clause common to the two companies’ contracts, the guards expressly and irrevocably declare that they release the company that hired them (Neskowin or Global Guards) and the company for which they are working (Blackwater or Triple Canopy), as well as their related enterprises, etc., from any liability, payment, compensation or assistance in connection with any damage or injury to their personal safety and/or integrity, which, in the course of performing their duties, may result from any foreseen or unforeseen action on the part of third parties (beyond what is covered by their life insurance).
19. It is interesting to examine these life insurance policies, since the Working Group has received allegations that, in some cases, compensation has not been provided. Under the federal law of the United States, companies are required to obtain insurance against injury and death in conformity with the Defense Base Act. However, the procedures for doing so are complex. For a start, the employer must deduct a certain amount each month from the “security guard’s” wages for this insurance. To that end, employers are required to include a clause in the contract indicating that the job is covered by the Defense Base Act and to inform an insurance broker, who, in turn, negotiates an insurance policy between the employer and an insurance provider working with the U.S. State Department. This labyrinth of claims for life insurance, disability or incapacity is then added to that of private security companies, agents and subsidiaries.
20. When demand was at its highest, Pizarro was estimating that he could send some 3,000 Chileans in 2006. How many did he actually manage to send? According to his own estimates, he selected and contracted 756 Chileans for Blackwater and Triple Canopy, and perhaps for others, such as Boots and Coots International Well Control, Inc. (an American company based in Texas). This figure coincides with the estimate of 749 supplied by the criminal investigation police.
21. Nevertheless, the number of Chileans who have actually gone to Iraq is probably higher, for various reasons. Grupo Táctico Chile, Neskowin and Global Guards were reportedly not the only companies recruiting Chileans to go to Iraq. In 2005, for example, the company Your Solutions Honduras SRL. - an agent of the American company Your Solutions Inc., based in the state of Illinois (United States) - selected and recruited 105 former members of the Chilean military and police to work in Iraq for Triple Canopy. These Chileans, who entered the country on tourist visas, were trained in Honduras along with other Hondurans before departing to Iraq. At this same time, another 50 Chileans were in El Salvador, also for the purpose of receiving
training in Honduras. [8] It is interesting to note that Oscar Aspe, an old friend of Pizarro’s who had already worked with him in Iraq, was among the Chileans in charge of operating Your Solutions in Honduras. [9]
22. Moreover, according to information received by the Working Group, a number of companies were currently operating clandestinely in Chile and recruiting Chileans to go to Iraq, such as Your Solutions, Loft Security, Land and Fire Integral Services and Britain Security, in Viña del Mar and Santiago. Some of the individuals managing those companies are thought to have worked closely with Pizarro in the past. The Working Group transmitted these data, which it received during its visit to Chile, to the private security division of the carabineros.
23. Very early on, in 2003, Televisión Nacional de Chile broadcast an initial report in which it showed military exercises being conducted with rifles on a private estate near Santiago. The individuals training were apparently former servicemen, but it was thought that military personnel still on active duty might also have participated, owing to the fact that Pizarro had reportedly placed posters inside some barracks and had consequently been barred entry to them. According to the testimony gathered by the Working Group from one of the “security guards” who had been in Iraq after being contracted by one of Pizarro’s companies, 17 active military troops, like himself, from a single unit had requested leave in order to be recruited.
24. The commander-in-chief of the army General Oscar Izurieta corroborated this information, indicating to the Working Group that, in one case, efforts had been made to hire active military personnel from a naval base by means of e-mail. The incident was investigated following requests for early retirement from a number of servicemen, all of whom were stationed at the same base. It was found that one of the soldiers was acting as a recruiting agent for Grupo Táctico. As a result, the army launched an internal campaign to discourage military personnel from retiring, informing them of the risks they faced and the long-term benefits of staying in the army. In addition, the agent who had been recruiting in the barracks was expelled. In late 2003, the Department of National Mobilization filed a complaint with the Military Prosecutor’s Office.
25. A few months later, Televisión Nacional de Chile broadcast another report with statements from 15 “security guards” who had returned from Iraq or from relatives of security guards still in Iraq in which they complained of failed promises and ill-treatment.
26. However, it was as a result of the programme “Informe Especial” presented on the national television channel that, at the instruction of the Minister of National Defence, the Military Prosecutor’s Office filed a complaint on 21 October 2005 with the military courts against José Miguel Pizarro on charges of establishing an armed combat group and encroaching on the functions of the armed forces and security forces. [10] In its application to the military court, the military prosecutor argued that the televised report “is accurate and conclusive in that it shows a group of former servicemen training and preparing for war with hand weapons and, in some cases, combat weapons. Furthermore, we are compelled to mention a fact that increases the gravity of this situation. The images indicate the presence of at least one English-speaking foreigner, whose nationality appears to be American, interacting with the others in training and carrying out certain offensive and defensive exercises alongside José Miguel Pizarro Ovalle. From the context of the news report, one gets the impression that he is a former serviceman in the armed forces of that country”. [11]
27. According to this same document, the establishment of an armed combat group violates article 8 of Act No. 17798 on the control of weapons. It also points out that offensive and defensive exercises, the use of light and heavy weaponry and door-to-door combat techniques, which fall within the sphere of the military, encroach upon areas that the Chilean Constitution has designated for the armed forces and security forces. The Military Prosecutor subsequently requested, inter alia, that:
(a) A restriction order should immediately be issued against Pizarro and his Chilean aides who were involved in providing military instruction; [12]
(b) Official notice should be sent to the Ministry of National Defence for it to determine whether the United States Government had requested authorization or informed the Chilean Government of the presence of former United States military personnel in Chile in connection with military activities linked to Pizarro’s companies;
(c) The Embassy of the United States of America in Chile should investigate the matter;
(d) The Ministry of Foreign Affairs should be requested to determine whether the activities of Pizarro and his companies constituted the international offence of the recruitment of mercenaries.
28. The Chilean authorities explained to the Working Group that it was difficult to judge the activities carried out by Pizarro’s companies since there was no well-defined classification of the corresponding offences in Chile’s legal system. Pizarro’s prosecution was conducted on the basis of three areas of the law:
(a) Under article 8 of the Weapons Control Act, since it was possible to prove that the weapons were made of plastic. However, in the “Informe Especial” report, Pizarro is seen dressed as an “independent contractor” at a civilian artillery range in Santiago and using a
military weapon to test the firmness of a bulletproof vest for his recruits. According to information transmitted to the Working Group by General Izurieta, it was as a result of these scenes showing Pizarro with military weapons, that Lieutenant Colonel Martin, who had wrongly issued authorization, was forced to resign;
(b) Under the Criminal Code - for encroachment on the functions of the armed forces, such as training combat troops and unlawful agreement;
(c) Under article 5 bis of Decree Law No. 3607 (1981) regulating private security activities in Chile.
29. The action against Pizarro and the activities of his companies, which was initially brought in the military justice system, is currently being conducted in two proceedings: one in the ordinary courts [13] and a second in the military courts.
30. Ordinary system of justice. According to information provided by the Supreme Court of Chile, the action instituted by the Military Prosecutor’s Office alleging a violation of article 5 bis of Decree Law No. 3607 concerning private guards was referred by the Second Military Court of Santiago to the Seventeenth Criminal Court of Santiago. Article 5 bis prohibits “the act of providing or offering the services of private armed guards, in any form or designation, by any natural or artificial person”. In this action, which was merged with another existing case in the above-mentioned ordinary court, Pizarro was sentenced to 61 days’ medium-term rigorous imprisonment within the minimum range, a fine equivalent to 200 times his minimum monthly income and permanent disqualification for positions requiring approval of Decree Law No. 3607 concerning private guards. On 23 August 2006, Pizarro appealed this sentence, and the matter is currently before the Court of Appeal. Replying to the question that the Working Group had put to the authorities concerning the mildness of the sentence handed down at first instance, the Working Group was informed that, although the sentence was mild, its legal effects were considerable since, if Pizarro was convicted a second time, he would lose whatever benefits he had acquired, and this time, he would have to serve his sentence in prison without being able to appeal on the basis of extenuating circumstances. The above-mentioned article specifically stipulates that a repeat offence “shall be punishable by medium-term rigorous imprisonment within the medium-to-maximum range and a fine equivalent to between 500 and 1,000 times the minimum monthly income”.
31. The complaint filed against Pizarro for unlawful association by then member of the Chamber of Deputies Alejandro Navarro and Chamber of Deputies member Antonio Leal on 8 April 2004 was also heard in the ordinary courts before the Seventeenth Criminal Court. On 5 October 2005, a temporary dismissal was ordered and the case was closed.
32. Military system of justice. [14] Case Nos. 1731-05 and 916-06 against José Miguel Pizarro are currently on file with the Fifth Military Prosecutor’s Office. Both have been merged under case No. 1731-05, which is at the stage of pretrial proceedings. The court must determine whether there has been a violation of the Weapons Control Act. According to our interpretation, there are grounds for the following three offences: (a) training armed combat groups; (b) possession of prohibited weapons; and (c) unlawful agreement.
33. According to information received from various sources, Pizarro continues to pursue his activities, which currently consist of training dogs to detect car bombs. The explosives allegedly used in the training sessions are said to be genuine explosives stolen from the army. On the same grounds where the dogs are trained, paramilitary training with AK-47 and M-16 rifles is reportedly carried out. On the basis of these reports, Senator Navarro is said to have requested that the case against Pizarro, which had been dismissed temporarily, should be reopened.
34. According to testimony gathered by the Working Group, between 6 and 10 “security guards” who had already been to Iraq and who, at that time, were working in Chile directly for José Miguel Pizarro but without a contract, had filed a complaint with the Chilean Labour Inspectorate in June and July 2005 for unjustified dismissal. The Labour Inspectorate reportedly informed them that they had 11 days to file the complaint through a lawyer. According to information provided to the Working Group during its meeting with the head of the Labour Department, the Ministry of Labour did not have any record of a complaint against Pizarro’s companies.
35. With respect to complaints against Pizarro’s companies for breaches of the terms of contracts signed by private “security guards” who had been in Iraq, as already indicated previously, the companies were registered in Uruguay or in Panama, and it was the courts of those countries that were competent to settle any dispute. Moreover, the contracts had been signed outside Chile - some in the United States and others in Amman, Jordan. As observed at the time by the former head of the Labour Department, the contracts were virtually unenforceable in Chile. The only request that could be made of a Chilean court, in the event it was declared to have jurisdiction, was to nullify the contracts. Some of the testimony gathered by the Working Group from “security guards” indicates that, faced with the prospect of filing a complaint with an Uruguayan or Panamanian court, they preferred to relinquish their claim and to forfeit any amounts they were due.
36. The Working Group also collected the testimony of a “security guard”, who, together with other former servicemen contracted to go to Iraq, had filed a complaint through National Congress representative, Laura Soto González. The complaint was reportedly before a court in Valparaiso. In an interview conducted by the Working Group with the above‑mentioned representative, she confirmed this information and indicated that the details of the case presented before the courts would be transmitted to the Working Group in due course.
37. With the exception of an alleged breach of insurance policy in connection with an accident sustained in Iraq by a “security guard” working for Blackwater, the allegations received by the Working Group concerned (a) Pizarro’s companies, were made by “security guards” contracted by Neskowin or Global Guards to work in Iraq and related for the most part to the non‑payment of wages; and (b) the company Triple Canopy, were made by “security guards” hired by Global Guards or Your Solutions to work in Iraq and related to contractual irregularities, poor working conditions, overcrowding, excessively long working hours, non‑payment of wages, degrading treatment and isolation, and neglect of basic needs, such as health and hygiene.
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