Right of peoples to self-determination

Sixty-fifth session

Item 68 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

 

The Secretary-General has the honour to transmit to the members of the General Assembly, in accordance with Commission on Human Rights resolution 2005/2 of December 2005, 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 people 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 present report provides an update on the Working Group’s findings on the use of mercenaries to undermine the enjoyment of all human rights and to impede the exercise of the right of peoples to self-determination and on the impact of private military and security companies on the enjoyment of human rights. It discusses the challenges linked to the lack of accountability of private military and security companies and their personnel, focusing particularly on the United States where attempt to litigate against these companies and their personnel have faced many obstacles. The second part of the report presents an overview of the activities carried out by the Working Group during the period under review, including its three regular sessions and three regional consultations held by the Group – for Asia and the Pacific, Africa, and Western European and Others Group - on traditional and new forms of mercenary activities. The report provides a brief overview of the United Nations’ policy vis-а-vis the use of private security contractors. Finally, it gives a summary of the progress achieved in the elaboration of a possible draft convention on private military and security companiesand annexes the elements for a possible draft convention as prepared by the Working Group for the consideration of Member States.

 

Paragraphs Page

Contents

 

 

I. Introduction……………………………………………………………………1-5

 

II. Update on recent activities of mercenaries and

PMSCs and the issue of accountability…………………………………………5-33

A. Increased ‘dependency’ on PMSCs…………………………………6-12

B. Privatization of security…………………………………………….13-15

C. Lack of accountability of PMSCs and their personnel……………..16-25

(a) Immunity agreements……………………………………. 17-19

(b) Prosecutions of PMSCs and their personnel…………… 20-21

(c) Prosecutions and punishment of mercenaries……………. 22-25

D. Contracting and use of PMSCs by the United Nations ……………..26-33

 

III. Activities of the Working Group…………………………………………..34-44

A. Regional consultations………………………………………………35-39

B. Country visits………………………………………………………..40-42

C. Communications…………………………………………………….43-44

 

IV. Progress achieved in the elaboration of a draft convention

on private military and security companies…………………………………….44-53

 

V. Conclusions and recommendations………………………………………….54-57

 

ANNEX Elements and key provisions of a proposed draft convention on Private Military and Security Companies (PMSCs)

 

 

I- Introduction

1. Pursuant to its mandate, the Working Group has continued to monitor mercenaries and mercenary-related activities in all their forms and manifestations, as well as 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.

 

2. The Working Group found that the trend toward extensive privatization of security is intensifying, while the private security industry, and in particular the export/import of private security services, remains fundamentally unregulated at the international level and often insufficiently regulated at the national level. The United States and the United Kingdom continue to be the lead suppliers as well as primary contractors of private military and security companies (PMSCs), mainly to support their operations in Iraq and Afghanistan. In addition to international companies, local PMSCs are also proliferating on national markets in all part of the world. PMSCs continue to provide a wide range of services including: personnel protection, site security and convoy security for military and civilian personnel working for international institutions, governments or private entities as well as policing and security protection services, intelligence data collection and analysis, private administration of prisons, interrogation of detainees and reportedly covert operations.

 

3. The Working Group continues to observe a lack of transparency regarding the activities carried out by these companies and remains concerned about the lack of accountability of these companies and their personnel for human rights abuses as well as with their overall impact on the enjoyment of human rights.

 

4. The Working Group focused its work during the reporting period on the elaboration of a draft of a possible new international convention on the regulation, monitoring and oversight of private military and security companies (PMSCs), which it believes would help distinguish the activities that could legally be carried out by PMSCs according to international law from the activities that should remain inherently State functions and could not in any circumstances be outsourced. The new legal instrument would establish minimum international standards for States parties to regulate the activities of PMSCs and their personnel and provides for a monitoring mechanism at the level of the United Nations. The elements and key provisions of a proposed draft convention as prepared by the Working Group are available in annex to this report for the consideration of Member States.

 

II. Update on recent activities of mercenaries and PMSCs and the issue of accountability

5. The Working Group continues to collect information regarding the activities of mercenaries and PMSCs around the world. It has observed that the trend toward increasing privatization of security in many parts of the world is intensifying. In addition to the extensive use of international PMSCs in conflict situations like in Afghanistan and Iraq, privatization of security is also occurring at the national level, with a risk to see security becoming a commodity that only the rich will be able to afford and the lack of accountability and responsibly of these private actors. The group is concerned that with this trend towards theerosion of the State monopoly of the legitimate use of force, the State is evading its duty to provide security for all its citizens equally.

A. Increased ‘dependency’ on private military and security contractors

6. Many States are increasingly relying on private military and security contractors in the performance of military and security functions, which until recently had been performed by government officials.

7. For instance, a two-year study of the U.S. intelligence community by the Washington Post[1] published on 19, 20 and 21 July 2010 found that contractors and in particular military and security contractors were playing a key role in the intelligence activities in the United States. The study concluded that the U.S. Government has developed a “dependency” towards private contractors, raising the question whether the Government is still in control of its most sensitive activities.

8. The Washington Post’s description of the wide range of activities[2] in which private contractors are involved demonstrates the extent of their involvement in performing functions which until now were performed by government officials and could fall under the category of ‘inherently state functions’.

9. Some PMSCs have grown so powerful, in terms of the military equipment they possess as well as the expertise they have developed that they have become an indispensable partner in the military and security activities of some Governments. The Working Group is concerned that this dependency may lead to a situation where such partnership may become predominant over consideration of companies’ past human rights records. As stated by Leon Panetta, current director of the Central Intelligence Agency, contracting with corporations whose responsibility is to their shareholders does present “an inherent conflict”.[3]

10. For instance, in June 2010, the U.S. Government granted the PMSC Blackwater/Xe new contracts worth about $220 million to protect U.S. Government facilities in Afghanistan and elsewhere and to provide protective services to the CIA. At the same time, the company is facing several lawsuits, including one criminal suit brought by the U.S. Government against five employees of the company in relation to the company’s involvement in the killing of 17 civilians in Nisoor Square, in Baghdad, Iraq in September 2007. [4]

11. Granting lucrative contracts to those companies that have not demonstrated any interest in promoting high operational and ethical standards in their work is also in contradiction with the stated commitment of the U.S. Government to work towards a global code of conduct for the respect of human rights and international humanitarian law by private military and security companies.

12. Given that PMSCs often operate in situation where governments are unable to ensure respect for the rule of law is respected, and in particular of international human rights obligations, the international community should ensure that they do their utmost to protect human rights and ensure respect of human rights by the companies their contract.