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63. The Working Group is grateful to the Peruvian authorities for their speedy issuance of an invitation and their close cooperation with the Working Group, which was consistent with the standing invitation issued by Peru to all special procedures mandates and its current membership of the Human Rights Council.
64. The Working Group commends the Peruvian State for its prompt accession to the International Convention against the Recruitment, Use, Financing and Training of Mercenaries, as part of its policy of preventing the recruitment of Peruvians as mercenaries.
65. The Working Group recognizes the efforts made by the Government to regulate private security companies under Act No. 28879, for which implementing regulations are in preparation, and under Act No. 28806 (Labour Inspection Act) and Act No. 28950, on the Prevention of Trafficking in Persons and Smuggling of Migrants, but also notes with concern the appearance of new modalities in private security.
66. The Working Group sees the use of “independent contractors” by transnational private security companies in Iraq and Afghanistan as one of the new forms of mercenarism to emerge in the twenty-first century. These contracts can be viewed as establishing the same, or very similar, conditions to those set forth in article 1 of the 1989 International Convention. Although the contract does not state it in so many words, these “independent contractors” are individuals who have been recruited abroad, are motivated by the desire for private gain[51] to fight in an armed conflict - for in providing such services they will be exposed to the extreme and unpredictable risks and perils of war - and to take part in the hostilities. Unlike article 47 of Additional Protocol I to the Geneva Conventions, the 1989 Convention does not use the term “direct part”, which means an independent contractor may perfectly well carry out passive functions but still be taking part in the hostilities.[52] The Peruvians recruited in this way are neither nationals nor residents of either of the parties to the conflict. Nor are they military, members of the Army of the United States, one of the parties to the conflict, and they are not civilians since they are armed. They have not been sent by a State on official duty. The fine legal point is the fact that MVM Inc. and Triple Canopy, the contracting companies, admit to working directly for the United States Department of State.[53] American private security companies have concluded contracts that appear to detail activities related to mercenarism, such as recruitment, training, financing and use of persons for the purposes of commercial gain.[54]
67. The Working Group is concerned at the signing of a contract between Gun Supply SAC and the Army Arms and Ammunition Factory SA that allowed the use of military facilities. The Working Group welcomes the Ministry of Defence investigation showing that the Army failed to evaluate the political and international implications or to inform the Ministry of Foreign Affairs or the Ministry of Defence; it also welcomes the authorities’ assurances that situations of this kind will not arise again.
68. The Working Group is concerned at the recruitment and training of hundreds of Peruvians by private security companies for service in Afghanistan and Iraq. Some of these companies, subsidiaries of foreign multinationals, were registered in Peru, while others were operating illegally. Two Peruvians have been killed and a number of others injured. There are allegations of contractual irregularities, poor working conditions, overcrowding, unreasonable hours, failure to pay wages, abusive treatment and isolation, and failure to meet basic health and hygiene needs. Despite having been hired as security guards, they received military training in Peru or a third country and ended up performing tasks not specified in their contracts and thus not agreed.
69. The Working Group is aware that the actions of certain private security companies constitute new forms of mercenarism and that they may have taken the Peruvian authorities by surprise. Nevertheless, serious omissions on the part of the Peruvian State have been noted, along with shortcomings in compliance with its obligations under international law. The unfavourable socio-economic situation and marked level of unemployment that make contracts of this kind attractive to people do not diminish the Government’s responsibility. The Working Group is concerned at the lack of action on the part of State bodies, particularly the Ministry of Labour and the Attorney-General’s Office.
70. The Working Group is concerned at private security companies’ hiring of off-duty members of the security forces, who use State property such as uniforms, weapons and ammunition; also at the type of arms and ammunition used by these companies, particularly those guarding mines. Peruvian law restricts access to and use of war materiel to the Armed Forces and the police, and possession of weapons of war is an offence under the Criminal Code. Yet it seems that private security companies can purchase unlimited quantities of arms and ammunition.
71. The Working Group draws attention to what is a growing problem in Latin America, namely the ever-closer connection between private security companies guarding key geostrategic sites such as mines, oilfields and water sources and the violent repression of social protest.
72. The Working Group is concerned at the conflation of legitimate social protest by communities in defence of their lands and environmental rights with criminal or terrorist activities and at the elimination, indictment and intimidation of community leaders, as well as intelligence agencies’ surveillance of protesters. It is also concerned at the lack of any effective system of protection for human rights defenders. Those responsible for these unlawful acts seem to enjoy a degree of impunity inasmuch as, in many cases of police or judicial complaint, no charges are brought against the perpetrators or else those responsible remain at large.
73. The Working Group deplores the fact that, despite the Government’s efforts to protect Fr. Arana, GRUFIDES leaders continued to be subjected to threats, tailing, spying and harassment in 2007.[55]
74. The Working Group welcomes the drafting by the Congressional Defence Commission of a bill prohibiting the hiring of Peruvians to provide security services in armed conflict zones.
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