Working Group on Mercenaries
NGO presentations on
Private Military and Security Companies

The Working Group (WG) on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self determination met from April 7 to 11 2008, having consultations with civil society, including NGOs, academics and think tanks on the morning of the 10th.  The WG currently aims to draft model legislation for domestic implementation that will assist States in the regulation of the activities of Private Security Companies (PSCs).  PSCs may be registered in one country, recruiting in another, training in a third, and operating in a fourth, so the phenomena is truly transnational, and a model law that enjoys a wide implementation should close loopholes in the current UN Convention on Mercenaries (1989) and encourage its broader ratification.  In addition, the WG recently carried out visits to four Latin American Countries as importers and a visit to Fiji, a major exporter of private security contractors.  Future visits were agreed on by the UK as an exporting country, and requests are pending on visits to Afghanistan and Equatorial Guinea.

Read the General Assembly draft resolution outlining the mandate of the WG here.
Read further information on the Working Group here.

The WG noted that PSCs are now employed to fulfill a plethora of tasks by a broad range of actors including the UN.  Therefore, they see the issue as one of regulation, not of prohibition, drawing a clear line between acceptable and unacceptable practices.  The WG also noted new manifestations of classical mercenary practice, such as the phenomena of unpaid mercenaries who are driven by ideological or religious, rather than financial motivations.  Such mercenaries also tend to operate in a horizontal rather than a vertical structure, organizing in networks rather than hierarchies, such as those in Al Qaeda type networks.

The WG expressed a genuine interest in consulting NGOs and intergovernmental actors in accumulating the norms, principles and guidelines that is has been mandated to present.  At the same time, the WG pointed out that the model law it was developing was based on complementary legal norms already in existence, that it was not creating new standards, and emphasised that the broadened definition, which will cover the use of PSCs, must be acceptable to States internationally.

A presentation by Amnesty International (AI) focused on ending the impunity that PSCs commonly enjoy for human rights violations.  AI stated that ensuring criminal accountability for such crimes should be the responsibility of both the host and the sending states, and underlined that the ability to have extraterritorial jurisdiction over such crimes was crucial.  Moreover, they stressed the victim’s right to a remedy.  AI supported the creation of an overarching instrument to capture the new realities that PSCs had created, stressing the central role that transparency, monitoring and scrutiny must play, including licensing to ensure that the group undertakes only measures that it is licensed to perform.

The Geneva Centre for the Democratic Control of Armed Forces (DCAF) pointed out that the terminology ‘Private Security Contractor’ creates a fog around actors that are often authorized to use deadly force.  DCAF stated that there are currently a lack of consistent regulations governing PSCs, even amongst similar states, such as France, Germany and Belgium.  DCAF have undertaken an exploratory study on PSCs with a view to analyzing ways to regulate them.  They have developed a database containing 120 laws from over 50 countries, good practices and legal commentaries on domestic regulation.  DCAF revealed that many countries do not have laws in place, or leave it to the Chamber of Commerce to regulate PSCs.  Additionally, they discussed the issue of self-regulation. Where PSCs had a code of conduct, it was usually around professionalism, rather than human rights.  Moreover, it was unclear how the code of conduct was enforced.  See DCAF’s websites here and here.

Human Rights First (HRF) stated that no effective law existed to control PSCs in the US.  Additionally, no guidelines on when a US Court should pursue an investigation into crimes committed by PSCs, and when the FBI or a military court should pursue the matter, exist.  Moreover, HRF pointed to the loophole that US law and Courts do not have jurisdiction over civilian contractors hired by the Department of State, unlike those hired by the Department of Defense.  Generally, HRF criticised failures of accountability and criminal liability, in addition to misleading contract procurement practices.  HRF stated that the appropriate functions that PSCs may perform need clarification as present missions are dangerously confused and intertwined with military functions.  Read HRF’s in-depth report here.

The Institute for Security Studies (ISS) in South Africa gave a presentation on its project to regulate the Private Security Sector in Africa, which aims to ‘strengthen democracy and good governance of the security sector and contribute towards a peaceful post-conflict environment in Africa thereby contributing to human security and development’.  This project aims to revise the outdated 1977 OAU Convention for the Elimination of Mercenaries in Africa, which fewer than 30 of 53 states have ratified.  They hope to develop updated regulatory frameworks for the private security sector in Africa at national and sub-regional levels.  Specific objectives of the project include research questions on the role of PSCs in South Africa, the Democratic Republic of Congo (DRC) and Uganda; informing the debate on the impact of PSCs on Human Rights, particularly those of vulnerable groups such as women and children; gaining an understanding of the trend in developed states (and the in UN) towards the outsourcing of core non-military functions to PSCs; and informing the process of disarmament, demobilsation and reintegration (DDR) in Africa, so as to prevent demobilised militia from becoming mercenaries for PSCs.  The ISS pointed out that very few AU states were engaged on this issue.  South Africa, however, has passed the first legislation globally that prevents organisations presenting as humanitarian organisations, yet who operate for profit, such as US company Blackwater,  from legally operating as a humanitarian organisation.  See the ISS website here.

La Fédération Internationale des Droits de l'Homme (FIDH) discussed the issues surrounding PSCs in Colombia and Iraq.  The FIDH stated that the military immunity from local laws enjoyed by foreign troops in Colombia was manifesting as impunity for crimes against civilians, and that this impunity was being extended to PSCs.  Additionally, the FIDH complained of former Israeli military officers training paramilitary groups in Colombia.  On the subject of PSCs in Iraq, the FIDH spoke of many Colombian PSCs sent to Iraq under false pretences, who must undertake dangerous and difficult duties that they were not informed of prior to arrival.  Moreover, they are often unpaid, their families are threatened if they complain, and they sign a contract of complete confidentiality that lasts for a number of years, making it difficult for them to seek redress if they return.

UK based NGO, War on Want (WoW), focused their report on the UK situation and legislation.  WoW predicted that as UK troops were pulled out of Iraq, that PSCs would proliferate, particularly in the role of protecting the oil extraction of multinational corporations.  WoW pointed out that the PSC industry in the UK was worth billions of dollars yet lacked a regulatory framework and gave the example of UK based PSC Aegis, which has reportedly engaged in combat 293 times. See WoW’s website here.

While the WG seeks to address the gaps in the current Convention on Mercenaries, civil society and NGOs can monitor and educate at the national level on their own government’s engagements with PSCs, and call for strengthened monitoring, regulation and the combat of impunity as a starting point.

Posted by Kirsty Mckay
14 May, 2008