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54. The Working Group wishes to thank the Chilean authorities for their invitation to visit Chile and their cooperation, and commends the State for its efforts to regulate private security companies.
55. The Working Group recognizes that the preliminary draft of a bill on Chile’s accession to the International Convention against the Recruitment, Use, Financing and Training of Mercenaries, which was deposited in the Defence Commission of the Chamber of Deputies, cannot be adopted without the necessary amendments that will be recommended by the inter‑agency working party. The latter is charged with examining the measures included in Chile’s domestic legislation with a view to developing an efficient and up-to-date system of rules for the criminalization, deterrence and punishment of new practices related to mercenarism. In this connection, if the Government considers it necessary, it may request technical assistance from the Office of the United Nations High Commissioner for Human Rights in preparing for the legal classification of mercenarism as a criminal offence and its inclusion in domestic legislation.
56. The Working Group believes that the adoption of a new private security act, which is currently being drafted in the Ministry of the Interior with technical support from the University of Chile and which will replace the current law concerning private guards, represents an opportunity to strengthen the existing legislation, regulation and control of private security companies in the country, as well as to improve public policies on private security. The preliminary drafts of bills concerning reform of the military career will help to discourage military personnel from recruitment by those private companies.
57. The Working Group expressed concern at the recruitment and training of hundreds of Chileans by private security companies in order to carry out duties in Iraq. It believes that the use of Chilean “independent contractors” or “security guards” by transnational private security companies in Iraq represents new expressions of mercenarism in the twenty-first century.
58. The aim of the contracts can be interpreted as generally to implement the same features or other very similar features as those specified in article 1 of the 1989 Convention. The Chilean “independent contractors” were recruited abroad and were motivated by the desire for private gain[30] to offer their services “in countries in a state of war, in which there are occupation forces and pockets of resistance”. If attacked, they could, at any time, become combatants in an armed conflict (offering their services in a highly dangerous environment that poses a risk to their safety and/or personal integrity) and could take part in hostilities. Contrary to article 47 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, the 1989 Convention does not specify what is meant by the word “directly”. Independent contractors may very well carry out passive functions that would involve taking part in hostilities.
59. Some Chileans recruited by the private companies in question and who had been in Iraq informed the Working Group that they had been armed with automatic rifles, sometimes with anti-tank bazookas, that they had returned fire every time they had been attacked by insurgents and had even used weapons banned by international laws on war. All this indicates that they were being prepared to take part in hostilities and that the line between passive and active participation in hostilities in an armed conflict or post-conflict area is very tenuous. Chileans recruited in this manner are neither nationals nor residents of a country that is a party to the conflict. Moreover, they are not soldiers, members of the United States Army, parties to the conflict or civilians - given that they are armed - and have not been sent by a State on official duty.
60. The legal subtlety of the matter resides in the fact that Blackwater and Triple Canopy, the contracting companies, admit to working directly on behalf of the State Department of the Government of the United States of America, which had contracted them with the objective of providing protection services in armed conflict or post-conflict zones, such as Afghanistan and Iraq.[31] Once they had obtained a contract from the United States Government, these companies, in turn, subcontracted other companies abroad. José Miguel Pizarro’s companies, Grupo Táctico, Neskowin and Global Guards, which selected and contracted Chileans, were based either in Uruguay or Panama. Neskowin had signed a contract with Blackwater, and Global Guards had signed one with Triple Canopy. Of course, information concerning the nature of the organizational relationship or contracts between Neskowin and Blackwater, on the one hand, and between Global Guards and Triple Canopy, on the other, is considered to be private, and the companies are not willing to disclose it.
61. The activities of the companies that hired Chileans as private “security guards” allegedly constitute practices related to mercenarism, such as the recruitment, training, financing and use of individuals as part of a profit-making arrangement.
62. It would be interesting to know to which authority of the Iraqi Government, the coalition in Iraq or the United States Government the companies that contracted Chileans were accountable in the event their employees or the companies themselves committed criminal offences. In this maze of contracting and subcontracting it would also be interesting to know whether there are any mechanisms available to Chileans whose rights have been violated and to which American authorities they can submit their complaints.
63. The Working Group has received allegations of contractual irregularities, poor working conditions, overcrowding, excessively long working hours, non-payment of wages, degrading treatment and isolation, as well as the neglect of basic needs, such as health and hygiene. This is despite the fact that the persons in question had been hired as security guards, received military training in the United States, in Iraq or in a third country, and ended up performing functions not provided for in their contracts.
64. José Miguel Pizarro’s companies apparently took advantage of lacunae and legal loopholes in Chilean domestic legislation to hire Chilean nationals as private “security guards” for American transnational corporations and to send them to armed conflict or post-conflict areas, such as those in Afghanistan and Iraq.
65. The Working Group expressed concern at information it had received indicating that new Chilean job placement agencies apparently continue to recruit former Chilean military and police personnel for American private military and security companies in order to work as private “security guards” in Iraq.
66. The fact that, despite having reacted promptly to the phenomenon, the Chilean authorities initially treated it as a private matter, along with the fact that the manager of Grupo Táctico, Neskowin and Global Guards continues to pursue similar activities regardless of the cases pending before the ordinary and military courts, may have contributed to a certain climate of “tolerance”. This has led to the paradoxical situation in which, on the one hand, the Chilean Government’s official position in the Security Council discussions of 2003 was to oppose waging a preventive war in Iraq, and on the other, the fact that some 1,000 former members of the Chilean military and police have taken part in that conflict as “independent contractors”.
67. In this regard, the Working Group commends the Chilean authorities for the unambiguous statement of Mr. José A. Viera-Gallo, Minister and Secretary-General of the Presidency, which prompted the Working Group’s visit to Chile, and in which Mr. Viera-Gallo underscored the paradoxical nature of the situation in which Chile finds itself. On the one hand, there is the official Chilean position to reject the war in Iraq, and on the other, the current situation in which some 1,000 Chileans are “protecting private security in Iraq (…) and are involved in a dirty war (…) of violent acts in which there are no clear boundaries between friends and enemies”. In his statement Mr. Viera-Gallo called for “efforts to facilitate Chile’s accession to the Convention” and, at the domestic level, “categorically and unequivocally to classify as a criminal offence actions undertaken by these types of private companies, which are sometimes based in developed countries, to recruit and, in some cases, trick Chileans into fighting wars that are not their own”.
68. The Working Group is aware of the fact that the practices in which some private security companies engage represent new forms of mercenarism and that these may have initially come as a surprise to the Chilean authorities. It is concerned, however, at the failure of the Chilean State to take appropriate steps to protect the right to life and physical integrity of the hundreds of former members of the military and police who were recruited to work in Iraq, as well as deficiencies noted in terms of Chile’s compliance with its obligations under international law.
69. With respect to the transfer of the use of force and/or authority to non-State actors, the Working Group wishes to point out the responsibility of States regarding the privatization of security, which is a public good and a human right. When security is privatized, there is the risk that it will no longer be available as a public service to those who cannot afford to pay for it, thereby violating the right to equity, in the sense that its access by the poorest members of society has been reduced. It should also be borne in mind that private security guards and armed guards do not defend common interests and the common good, but rather the private interests of those who hire and pay them, and in so doing they transform security into a commodity.
70. In conformity with international human rights standards, the privatization of public services must not at any time prevent such services from being made available to the general public in sufficient quantity. Moreover, public services must be accessible to all without discrimination of any kind (economic or information-based); culturally acceptable; and of good quality - in other words, privatization should not result in lower quality services.[32] The privatization process must also be transparent, and information must be disseminated with the aim of ensuring the right to seek, receive and impart information[33] and avoid corruption - an aspect that is often present in the privatization process.
71. With regard to social protests engaged in by indigenous communities in defence of their lands and environmental rights, the Working Group is concerned at the fact that legitimate social protests are being confused with unlawful or terrorist activities, that their leaders are being subjected to accusations and intimidation, and that, when States transfer the use of force and security to private security companies, unlawful acts may be committed.
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