B) Prosecutions of PMSCs and their personnel

 

23. The Working Group remains concerned at the lack of effective prosecutions of PMSCs and their personnel. In the United States, several civil lawsuits were lodged against such companies, but they faced significant legal obstacles. These included the defense that PMSCs and their personnel cannot be held liable for their actions given that PMSCs are operating under the exclusive control of the Government. PMSCs have also argued that they should enjoy immunity even for illegal conduct, including acts of torture, because they are contractors carrying out governmental functions. PMSCs and their personnel have also challenged the applicability of international law to them, claiming that international law obligations — including the prohibitions on torture and war crimes — do not extend to PMSCs as they are non-State actors. [12]

 

24. However, the Working Group is encouraged by the recent decision of the United States District Court for the district of Maryland Greenbelt Division to proceed with the case against L-3 Services, Inc., a military contractor which provided civilian translators for United States military forces in Iraq. The plaintiffs, a group of 72 Iraqi citizens, alleged that L-3 personnel tortured and physically and mentally abused them during their detention. Though L-3 filed Motions to Dismiss using the arguments as discussed above, for the first time a court denied these arguments and allowed the case to go forward.[13]

(c) Prosecutions and punishment of mercenaries

 

25. “Classical” mercenaries have been tried and convicted for criminal behavior only in a handful of cases. Two of these cases are particularly notorious. The first is the trial in Equatorial Guinea of a number of mercenaries, including Simon Mann and Nick du Toit for their involvement in the attempted coup against President Obiang of Equatorial Guinea in 2004. The second was the conviction of the Israeli mercenary Yair Klein by a court in Colombia for training several members of Colombian paramilitary groups and militias of drug traffickers during the 1980s and 1990s. The Working Group notes that in the case of Equatorial Guinea, all mercenaries involved in the coup were pardoned and freed in November 2009 after having been sentenced to over 30 years imprisonment just over a year before. The Working Group raised this issue during its mission to Equatorial Guinea in August 2010, together with the allegations that their trials failed to comply with international human rights standards and that some of the accused have been subjected to torture and ill-treatment. The Group will report in its findings in 2011.

 

26. Yair Klein was convicted in February 2001 by the Criminal Court of the Manizales District, Colombia for “instruction in and teaching of military and terrorist tactics, techniques and methods, committed with mercenaries and accomplices”[14] and sentenced in abstentia to 10 years in prison. The Colombian government made unsuccessful attempts to claim his extradition from Israel. In March 2007, Interpol issued an international arrest warrant for Y. Klein, who was subsequently arrested in August 2007 in Moscow airport and placed in custody until his transfer to Colombia which had requested extradition.

 

27. Despite the authorization given by a Russian tribunal to extradite Y. Klein to Colombia, the European Court of Human Rights decided to suspend the extradition procedure and on 1 April 2010 ruled that the implementation of the extradition order would give rise to a violation of Article 3 of the European Convention of Human Rights (prohibition of torture and inhuman or degrading treatment or punishment).

 

28. The Colombian authorities have expressed their concerns and disappointment at this Court ruling which they said provided de facto immunity for the crimes committed by Klein and his trainees,, and denied truth and justice for their victims. While the Working Group respects the judgment of the European Court of Human Rights on the issue of extradition, it is concerned that this decision may lead to a situation where Y. Klein would not be held accountable for his criminal activities and human rights abuses.

 

D. Contracting and use of PMSCs by the United Nations

29. The Working Group contacted a number of UN officials to gather information on the policy of the United Nations regarding the use of PMSCs in the context of the UN peacekeeping missions or other UN activities in conflict-affected areas. Many PMSCs are very keen to advertise their actual or hypothetical work with the UN and humanitarian organizations to portray a positive image of their activities and have been intensely lobbying to obtain contracts in the peacekeeping operations.[15] However, PMSCs’ interests remain purely financial.

30. The United Nations is using the services of private military and security personnel in some of the conflict zones in which it is engaged. However, it lacks a firm UN system-wide policy governing the hiring of PMSCs, including issues related to the vetting and the monitoring of these companies and their personnel. The problem of accountability of PMSCs personnel becomes even more complex when private military contractors are used by international organizations, such as the UN, the EU or NATO. The concept of institutional responsibility of intergovernmental organizations is still elusive and should prompt the UN to take precautionary measures to ensure that if and when it outsources its security and protection functions, it does so in accordance with its own Charter, international human rights standards and with proper management and oversight.

31. The Working Group sent letters in February 2010 to the UN Departments of Safety and Security (UNDSS), Management (DM) and Field Support (DFS) requesting information from those departments about the UN policies regarding the use of PMSCs, the types of activities that the UN is contracting out to PMSCs and individual security contractors as well as regarding the oversight mechanisms in place including vetting procedures of personnel working as contractors for the UN. The Group regrets that none of these departments have replied in writing to its letters and invite them to cooperate with its mandate.

32. In July 2010, at the request of the Group and while in session in New York, the members of the Working Group met with senior representatives of the UNDSS, who underlined the readiness of their department to cooperate and exchange views with the Working Group on this issue.

33. Representatives of UNDSS noted that the UN has been confronted with increased security challenges to ensure protection of its facilities and staff around the world. They informed the Group that to provide protection of the UN 12,000 to 14,000 facilities worldwide, close to 60% of UN offices were using the services of PMSCs. Most of these PMSCs were local companies, providing guard services for the office, as well as residential security for the staff.

34. UNDSS stated that there is currently no UN system wide policy regarding the outsourcing of military and security functions of the UN to private companies and that each UN agency could decide to use PMSCs and to contract them directly. However, in 2008, members of the UN Inter-Agency Security Management Network (IASMN)[16] started raising serious concerns regarding the increased use of private security providers by the UN and the need for further policy on this issue. These discussions have begun n the framework of the IASMN.

35. UNDSS informed the Group that the IASMN in a recent meeting in June 2010 in Vienna and agreed to form a Working Group tasked with elaborating a system-wide policy for the use of PMSCs. The primary purpose of the IASMN Working Group would be to establish a clear set of criteria for the use of PMSCs, with the understanding that PMSCs would only be used as a last resort in situations where the UN does not have better alternatives, based on risk assessments carried out for each location.

36. The Working Group welcomes this initiative of the UN to reflect on this core question of the security of its staff and facilities, including the use of PMSCs. The Group understands the importance for the UN to be able to provide its assistance in tense and volatile situations while ensuring maximum security for its staff and facilities. In these conditions, pressure will continue to grow on the UN to hire more private military and security personnel. However, the Working Group believes that without proper policy and oversight, there is a risk that incidents could happen and have a negative effect on the image of the Organization and the UN role in providing assistance in the field. The UN should serve as a model for Member States and other organizations in applying international human rights standards and should have a clear policy on where and in what conditions it will hire PMSCs and on its oversight system. The UN should also have mechanisms to ensure that in cases of human rights abuses, private military and security contractors will be held accountable. The Working Group stands ready to provide its expertise to the UN while it is elaborating its policy, specifically in relation to definitions, principles, criteria and norms currently elaborated by the Working Group within its draft Convention on the regulation of private military and security companies.

 

III. Activities of the Working Group

37. In accordance with its mandated practice, the Working Group held three regular sessions during the year, two in Geneva and one in New York. The Working Group concentrated its efforts on its ongoing work on the elaboration of a possible new international convention on the regulation of activities of PMSCs. It also convened three regional governmental consultations on traditional and new forms of mercenary activities, held regular meetings with member States representatives, and NGOs and experts. The Working Group continued to receive and review information regarding the activities of mercenaries and PMSCs and their impact on human rights and decided on appropriate action.

A. Regional consultations

38. In accordance with General Assembly resolution 64/152, the Working Group held three regional consultations with States representatives during the period covered in this report.

39. After the first consultation for Latin America and the Caribbean held in Panama in December 2007[17] and the second in Moscow for Eastern Europe and Central Asia[18] held in October 2008, the Working Group held regional consultations in Bangkok in October 2009 for Asia and the Pacific, in Addis Ababa in March 2010 for Africa, and in Geneva in April 2010 for the Western European and Others Group.[19]

40. Participants at the consultation for Asia and the Pacific[20] noted that PMSCs were on the rise and active in the region and that the legal framework applicable to these groups needed to be clarified and further strengthened. Participants exchanged views on their national experience with PMSCs, with the representatives of Afghanistan and Fiji giving comprehensive presentations on the situation of PMSCs in their respective countries. The Working Group presented the elements of its proposed draft convention on PMSCs and engaged in a discussion over its purpose, scope as well as its main principles, receiving comments and recommendations.

41. The consultation in Addis Ababa was attended by representatives of 20 African countries and by representatives from the African Union Commission. [21] Participants provided comprehensive information on, and engaged in discussion of recent mercenary activities on the continent and their impact on human rights, together with the growing activities of local and foreign PMSCs in Africa. The Working Group provided a comprehensive presentation of the elements of the draft convention and States expressed strong support for the work done by the Working Group on the preparation of the text of the draft convention.

42. The last regional consultation took place in April 2010 in Geneva with the representatives of Western European and Others Group (WEOG). [22] The discussion focused on initiatives taken at the national and regional level by Western States, as well as on elements for a possible new draft Convention. The Working Group expressed its appreciation for the constructive comments it has received from many WEOG countries. While the Working Group noted the reservations of the EU and others with regard to a possible new convention on the issue, it underlined the shared goal of more effective regulation of the private security industry to protect individuals from human rights abuses and ensure that when such abuses occur, those responsible are held accountable and that victims have access to effective remedies.

B. Country visits

43. The Working Group undertook two country visits in the course of 2009, one to the Islamic Republic of Afghanistan and the other to the United States of America, on which it reported in its last report A/64/311 of 20 August 2009 to the General Assembly. The full reports can be found as addenda to the A/HRC/15/25 report.

 

44. The Working Group conducted a visit to Equatorial Guinea from 16 to 21 August 2010 to review the measures taken by the Government in the context of the attempted coups d’йtat conducted by mercenaries in 2004 and thereafter, including the judicial proceedings related to these cases. The Group also inquired about the trials conducted in relation to the 17 February 2009 attack on the presidential palace by alleged mercenaries, and in particular whether the due process guarantees as contained in international human rights instruments were respected.

 

45. The Working Group was invited to visit South Africa to discuss the current efforts of the Government to ensure oversight and monitoring of the activities of South African PMSCs and their personnel operating abroad. The visit is scheduled to take place in November 2011.

 

C. Communications

43. The Working Group continues to receive information from Governments, NGOs and individuals concerning situations involving mercenaries, mercenary related activities as well as allegations of human rights abuses by private military and security companies. In addition, since the Working Group last reported to the General Assembly, communications were sent to Australia, Colombia, Fiji, Guinea, Israel, Papua New Guinea, South Africa and the United States of America. The Working Group would like to thank the Governments of South Africa and the United States of America for their prompt replies to its communications. The Working Group reiterates its interest in receiving responses from the concerned Governments in regard to allegations submitted and considers response to its communications as an important part of the cooperation of Governments with its mandate. The communications and summaries of responses received from Governments are reflected in addendum 1 to the A/HRC/15/25 report.

 

IV. Progress achieved in the elaboration of a possible draft convention on private military and security companies

 

44. Following the adoption of A/HRC/RES/10/11 on 26 March 2009 related to the elaboration of a possible draft convention on private military and security companies, the Working Group continued to focus its work on the draft convention and organized a series of consultations with a wide range of stakeholders on the content and scope of such a legal instrument from July 2009 to May 2010.

 

45. An initial draft text of a possible convention was circulated on 15 July 2009 to some 250 experts, academics and NGOs for comments. The Working Group received some 60 written submissions from this group in response, comprising a total of over 400 comments and recommendations. The Working Group also held consultations with experts and civil society representatives during its seventh session in New York in July 2009 in collaboration with the International Peace Institute (IPI). From September to December 2009, the Working Group considered the comments received from all the above-mentioned stakeholders and drafted an amended version of the draft convention.

 

46. In a second phase and in accordance with the above-mentioned resolution which requests the Working Group to “share with Member States, through the Office of the United Nations High Commissioner for Human Rights, elements for a possible draft convention on private military and security companies, request their input on the content and scope of such convention and transmit their replies to the Working Group”, the Working Group prepared a “Note on elements for a possible draft convention on Private Military and Security Companies (PMSCs)” containing the main principles and provisions of the draft convention and circulated it to all UN Member States for their comments on 4 January 2010.

 

47. The Working Group received written submissions from Australia, Azerbaijan, Belarus, Canada, Cuba, Ecuador, Egypt, Guatemala, Lebanon, Mauritius, Qatar, Russian Federation, Serbia, Slovenia, South Africa, Spain (on behalf of the European Union), Switzerland, Trinidad and Tobago, the United Kingdom of Great Britain and Northern Ireland and the United States of America. The Working Group also received written comments and recommendations from above 20 intergovernmental organizations and institutions of the Commonwealth of Independent States (CIS).

 

48. In parallel to this process, the Working Group received feedback on the elements of their proposed draft convention during the three regional consultations held with representatives of member States in Bangkok, Addis Ababa and Geneva (see above). In addition, the Working Group also organized briefings for all Permanent Missions in Geneva during its session in April 2010 as well as in New York in July 2010.

 

49. The Working Group has annexed to this report the elements for a possible draft convention on the regulation, monitoring and oversight of private military and security companies for consideration by Member States. The full text of its draft convention developed by the Working Group is annexed to the Working Group’s report to the fifteenth session of the Human Rights Council.[23].

 

50. The aim of a new binding legal instrument is not to ban PMSCs but to establish minimum international standards for States parties to regulate the activities of PMSCs and their personnel and set up an international oversight mechanism. The draft convention proposes to:

- reaffirm and strengthen the State responsibility for the use of force and reiterate the importance of the State monopoly of the legitimate use of force;

- identify those functions which are inherently State functions and which cannot be outsourced to PMSCs under any circumstances;

- limits PMSCs use of force and firearms according to international human rights standards;

- request that State party develop national regime of licensing, regulation and oversight of the activities of PMSCs and their sub-contractors;

- promote international cooperation between States regarding licensing and regulation of the activities of PMSCs, as well as their oversight;

- establish increased responsibility of ‘home States’ (where PMSCs are registered) for the export of military and security services of PMSCs registered and licensed in their country;

- request States of operation of PMSCs to ensure effective control over the activities of foreign PMSCs operating on their territory;

- establish an international register of PMSCs based on information provided by member States.

- establish a committee on the regulation, oversight and monitoring of PMSCs, in accordance with established procedures in international human rights treaties to monitor the measures taken by State parties to implement the convention.

51. The proposed convention would apply to States and intergovernmental organizations, within the limits of their competence, with respect to PMSCs, their activities and personnel. It would apply to all situations where PMSCs are used, regardless of whether the situation would be considered to constitute armed conflict.

 

52. The proposed convention would establish a committee on the regulation, oversight and monitoring of PMSCs to monitor the legislative, judicial, administrative or other measures which States parties have adopted to give effect to the provisions of this Convention. In accordance with established procedures in international human rights treaties, the committee is envisaged to receive reports by States parties on the legislative, judicial, administrative or other measures which they have adopted and which give effect to the provisions of this convention. The draft convention also envisages an inquiry procedure as well as an individual complaint procedure. It could also receive complaints from States parties that consider that another State Party is not giving effect to the provisions of the Convention and set-up an ad hoc conciliation commission if deemed necessary.

 

53. Finally, the draft also proposes that the Secretary-General establishes an international register of PMSCs operating on the international market based on information provided by States parties. For purposes of the register, each State Party would be obligated to annually provide data for the Register on imports and exports of military and security services of PMSCs and standardized information on PMSCs registered in and licensed by the State Party. This obligation to share information on companies in an open and transparent way would also lead to greater public and parliamentaryscrutiny.

V. Conclusions and recommendations

The Working Group would like to emphasize its utmost concern at the impact of the activities of PMSCs on the enjoyment of human rights, in particular when operating in conflict, post-conflict or low-intensity armed situations and notes that PMSCs and their personnel are rarely held accountable for violations of human rights.