B. Privatization of security

13. Privatization of security is a global trend with developing countries in Africa and Latin America at the forefront of the private security market. In several countries, private security is one of the few growing sector of the economy and one of the main private employers. The world largest security company, Group4Securicor (G4S) employs nearly 600,000 people and is the second larger private employer in the world. It is present in some 30 countries in Africa and 22 countries in Central and Latin America.[5] In South Africa for example, reported figures show that there are over 6,000 registered and active private security companies in the country, employing close to 400,000 security guards, double the number of police officers. Kenya has some 2000 private security companies registered which employ close to 50,000 people, while in Angola, 300 PSCs have around 35,000 staff and Nigeria some 2000 companies.[6] In Colombia, 3392 PMSCs were registered as of June 2009 and 500 new ones were seeking to register their companies. [7]

14. The presence of international PMSCs in Africa is also growing as companies take advantage of low wages and growing markets for their services in these emerging economies. These countries have become a useful recruiting ground for international PMSCs, who have recruited thousands of third country nationals for their operations in Iraq and Afghanistan. In Uganda alone, more than 10,000 recruits have been trained to work in private security business in Iraq. [8]

15. The extensive privatization of security in developing countries, where government institutions frequently remain weak, raises important questions about the long term security implications of such privatization, including its impact on public security, on reinforcing inequalities between the rich and the poor, and on the accountability and responsibility of these private actors. Often, private security companies have been called on to fulfil protection needs that the national police forces were unable to provide, because of lack of sufficient resources but also because police are often a major source of public insecurity, taking part in violence, intimidation and acts of corruption.

16. Nevertheless, one should not overlook the potentially wide-ranging consequences for the use of private security companies on states’ institutions and their ability to provide public services. The Group found that companies may also play a role in exacerbating conflicts or increasing instability in some situations. For example, in Afghanistan, the Group found that the presence and activities of PMSCs in Afghanistan was very much interconnected with the large number of unauthorized armed groups of various kinds on Afghan territory, reinforcing the perception that PMSCs were a threat to stability.[9] In other countries, PMSCs have been involved in repressing social protests in relation to multinational companies involved in infrastructure, mining, oil and other natural resources activities.

C. Lack of accountability of mercenaries, PMSCs and their personnel

17. Legal proceedings against PMSCs and their personnel for criminal activities or human rights abuses are relatively rare. In the few criminal and civil actions that have been brought, private military and security companies have argued that courts lacked jurisdiction to examine the alleged abuses committed abroad (as for American PMSCs in the case of Iraq). They have also argued that the conduct in question does not meet the threshold of ‘violation of international law’ serious enough to trigger the application of the U.S. Alien Tort Claims Act (ATCA). In addition, they use the arguments that these are non-justiciable political questions and that the constraints are linked to providing evidence to hinder effective prosecution.[10]

18. In general, the Working Group observed that in conflict situations, like in Afghanistan or Iraq, allegations of human rights abuses perpetrated by PMSC’s employees are not properly reported and investigated. In addition to lack of effective oversight structures, often victims have been unable to identify the authors of the abuses due to the difficulty to distinguish between many military actors, be it national forces, international forces or private military and security companies. PMSC personnel are not always wearing distinctive uniform and identification badges and often drive unmarked sport utility vehicles (SUV) with tinted glasses and no plates, which add to the confusion.

19. In this part, the Working Group discusses the ongoing practice of granting immunity to private contractors, as well as the few prosecution cases of PMSCs and their personnel as well as mercenaries.

(a) Immunity agreements

20. The Working Group expressed its serious concern in a press statement issued on 10 November 2009 at the immunity provided to US personnel and defense contractors under a new US-Colombian military accord. The “ Supplemental Agreement for Cooperation and Technical Assistance in Defense and Security” signed on 3 November 2009 granted the U.S. permission to station up to 800 military personnel and 600 private security contractors, operating on seven Colombian military bases. Article VIII of the Agreement provided privileges, exemptions, and immunities to those contractors that would amount to a limitation of the effective exercise of judicial jurisdiction of Colombia over U.S. private military and security contractors operating on its territory. In addition, the agreement does not specify any mechanism of supervision and control by the Colombian authorities of private military and security companies hired by the U.S. government to operate in Colombia.

21. The Working Group would like to recall that in Iraq, the United States had to renegotiate its Status of Forces Agreement (SOFA) with the Iraqi authorities in 2008 after the shooting by Blackwater/Xe personnel of 17 civilians in Nisoor Square, Baghdad, on 16 September 2007. The initial SOFA contained a provision ‘the Coalition Provisional Authority Order 17’ which granted immunity to contractors working for the U.S. Government in Iraq. It was finally abrogated in January 2009. To date, none of the Blackwater guards involved in the incident have been convicted.[11]

22. The granting of immunity to private contractors significantly diminishes their accountability for any crimes that they or their employees may commit and undermines the ability of victims to have access to justice and effective remedies. Given the lack of a comprehensive international legal framework governing the activities of PMSCs, it is crucial that in all cases private military and security contractors be subject to local laws and to prosecution in local courts under such laws.