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Oral intervention of Mr. Jos6Luis G6mez del Prado as Chairpersonof the Working Group on the use of mercenaries a peoplesto selfmeans of impeding the exerciseof the right of determination

of Assembly 62nd session the General Third Committee Item # 70 (b) 7 November 2001 New York
(UnofficialEnglishtranslation )

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Mr. Chair, distinguished delegates, representatives of the United Nations , Intergovernmental and Non-GovernmentalOrganizations,itis an honor, in my quality of Chairpersonof the Working Group on the Use of Mercenaries,to present our second report to the Third Committee of the General Assembly. The Working Group is almost cornpleting its secondyear since it was establishedby the Human Rights Commissionin 2005. At the time, the Commissionthought it was important to reinforce the sole mandateon the subject of mercenariesand their related activities by transforming it into a Working Group composed of five members and giving it thereforea global geopoliticaldimension,in addition of integratinga gender balance. One of the most irnmediate effects of this decision has been the more intense prornotion of the ratification of the International Convention against the recruitment, use and financing of mercenaries 1989which, with the recentadhesion Cuba and of of Peru, has already 30 State parties. In contrast with the main instruments of human rights, the Convention has not establisheda treafy body. The Working Group, as the only existing mechanisrn in fhe United Nations in charge of subjects related to mercenarism,attemptswithin its possibilitiesto cover that loophole by monitoring, follow-up and promoting universal adhesionto the Convention. In addition, the Committee on the Rights of the Child has recently introduced an innovative reference, in the reporting guidelines for Statespartiesto the Optional Protocol to the convention, concerningthe crirninal liability of legal personssuch as private military and securify cornpaniesfor acts and activities enumeratedin the Protocol. In addition, with regard to the elaborationof concrete proposalson possiblenew general guidelinesor basic principles aiming at the strengthening the standards, of international legal framework to fight the new modalities of mercenarism, I am pleasedto inform you that the Working Group will hold a RegionalConsultation with Latin Arnerican and Caribbean countries in Panama City, on l7-18 December,to discussthe impact on human rights of the activities of private military and security companies. This meeting is organized by the Office of the High Cornrnissionerfor Human Rights within the context of regional consultationsrequestedby the Working Group to the General Assembly in order to discussthe role of the State as holder of the monopoly on the use of force and to arrive to a common understandingas to which additional regulationsand controls are neededat the internationallevel.

Within the prograrn of consultative servicesof the Office of the High Comrnissioner for Hurnan Rights, the elaboration of a model law of the Convention aiming at facilitating the adhesion of Statesthat wish to ratifo the Convention, and facilitating therefore the steps to adapt the international nonns to the internal legislation, could also be promoted. In this respect, in order to fulfill its mandate,specifically in relation to the monitoring and the study of the effect of military and security companiesactivities on the enjoyment of human rights, the Group has elaboratedand integratedin its rnethodsof work a systemof individual communications which enablesit to receiveand to study

allegationsof possiblehuman rights violations.In the courseof thesetwo years,as a result of receivedallegations, communicationshave been sentto the governments of Australia, Brazil, Chile, Colombia, Ecuador,the United Statesof America, Honduras, Iraq and Peru. The most recent communications are relatedto the killings allegedly perpetrated by private military security companies respectively in September and Octoberof this year in Baghdad. Furthermore,I would like to indicate other positive results of the Working Group. The mandate benefits from the knowledge, wisdom and experiencesthat each of the five independent experts has, since they belong to different legal and political systems. The added value of having five insteadof one expert is creating awarenessin each of the five geopoliticalregions to which we belong. In fact, each of us, within his/her possibilities and the available time, promotes in his/her region the different dimensions of the mandatethrough conferences, meetings,seminarsand consultations, the creation of academicnetworks and contactswith civil society and the massmedia. In this respect, the Working Group and the questions addresses the fulfillment of it in its mandate have received great attention and have had great dissemination in international and local massmedia, in particularthe written and electronicpress,radio a n dt e l e v i s i o n . The individual and collective work of the Working Group members, is having an public opinion but also in official documentslike impact not only on the international the one elaborated by the Consressional Research Service of the Congress of the United States America that devotes a specialsectionto our activities. of Mr Chair, the specificity and the dimensions of the mandatethat has been grantedto us touch many characteristicsof the new "human security" concept such as the right of human beings and peoplesto live in a private and public environmentwhich is safe and healthy,and to receive protectionagainstillegitimateacts of violence,with independence their stateor non-stateof origin as well as to have the instruments, of meansand materialresources which make it possible enjoy life with dignity. to Our mandate, in contrast with other special procedureswhich have a perspective focused on the victims of human rights violations,takesinto accountboth individuals who are victims of human rights as well as individuals violating human rights, complementing thus other mandatesthat take care of the right to life and the security peoplesrights; right to health, of the person,economic and social rights; indigenous labor rights, right to freedom of expressionor the right of the peoples to selfdetermination. The Working Group's approachis dual: on the one hand we examine the possible human rights violations that mercenaries or people recruited by private security companiesin situationsof violence, low intensity armed conflicts or post-conflicts could have committed; and on the other hand we examine the abuses and possible violations that thoseprivate securitycompanies may commit in their searchfor profit to the contractedprivate guards, who are often in situations of vulnerability , and to thosepeoplewhose fundamental rights are violated. Regarding the first two aspects,the Working Group has received information from different sourceswhich indicates that very often the guards of these private securify

companies, operatingin situations violenceand armed conflict like in Iraq, act of indiscrin'rinately shooting killing or hurting and civilians who theyconsider a threat. as The killings of 16 Septernber 2007is one amongmany incidents that happened in privatesecurity Iraq in the courseof the four yearssincethese companies havestarted to operate that country. in point at an emergentand very flourishing The new modalities of mercenarisrn industryof military and privatesecurify companies respond a commercial that to logic in search the greater profit. Traditional"mercenaries being absorbed the of are by private companies. security with governments' We haveraisedtheseissues representatives, highlightingthe fact humanrights,public security,the of that it is the Statethat hasthe duty to respect rule law and public order.If they do it directlyor throughprivatesecuritycompanies, the States'responsibilityremainsintact towardsthe victims and international law. By virtue of national sovereignty and in accordance with international law, collective law securityof the Charterof the UnitedNationsandthe constitutional of eachState, security, order and national defenseare competence the military and police of machinery. Furthermore, we have alerted the authoritiesof the countriesfrom which these as individualsare recruitedto operate securityguardsin armedconflict zonesabout in the dangerof committing at any time war crimes. Consequently, one of the we encourage States Assembly, the in recommendations our reportto the General of recruit formermilitaryandex- policeandsend them whichprivate security companies to to if to armedconflict areas, adhere the Convention they havenot doneso, and to to of to adoptthe necessary lneasures avoidthe recruitment mercenaries, makepublic practices. and these statements to apply policiesto discourage Fiji, Honduras Peru and In relationto the second aspect, visitsto Chile,Ecuador, the manifestations haveallowedus to obtaininformationand to studythe new emerging mercenaries, well as the activitiesof privatemilitary security as and trendsregarding of that companies their impacton the enjoyrnent the humanrights They indicate and therehave been contractual irregularities, conditions work, overcrowding, bad of mistreatment isolation, and as working excess hours,breachin the payrnent salary, of to Althoughthey well as lack of attention basicneeds suchas healthand hygiene. as they received military trainingin the United a had beencontracted securityguards, that of States America,Iraq or in a third countryand endedup performingfunctions werenot foreseeable their contracts. in as of can be interpreted putting into practiceelements or The purpose the contracts very sirnilarto thosestipulated articleI of the International in Convention of others "independent contractors" were 1989.The Chilean,Fijian, Honduran Peruvian or encouraged the desire for privategainto work according the to recruited abroad, by "in counlrieswhich are at war whereoccupationforces pockets and contract clauses, . they canbecome anytimecombatants an at in exist" If they areattacked of resistance with their contracts(...) in an atmosphere high of armed conflict (in accordance danger and risk for their security cnd/or personal integrity) and take part in the 47 Protocol the Convention 1989 I, to of hostilities. Contrary article of theAdditional

"directly", the independent contractor can performance does not specify the word passivefunctionsthat would imply to take part in the hostilities. Some of the recruited guards who had been in Iraq informed the Working Group they were heavily armed with automatic rifles and sometimeswith antitank bazookas. They had respondedevery time they were attacked by the insurgency and they had even used prohibited arms by the internationallaws of war. These private guardsoften circulated in vehicles with tinted windows and with no sign of identification following the death squads' behavior, and in numerous occasionsthey have done an excessive and indiscriminateuse of force, committing human rights violations and killing civilians. All this indicatesthat they were preparedto take part in the hostilities and that the line that separates passive from active combat in an armed conflict or post-conflict situation is extremely fine. Most of the individuals recruited in this manner are neither nationals nor residentsof one of the parts in the conflict. They are not military or members of the United Statesarmy, one of the party to the conflict, or civilians they are armed.They have neitherbeensent in official missionby a State. because The contracting companies admit to work directly for State Departments of the United States of America Government that contracted them with the purpose of conducting protection activities in zones of armed conflict or post-conflict like Afghanistan and Iraq. These companies,once they have obtained the contract from the Government of the United States,subcontractother companies abroad that select and recruit ex- militaries and ex- policemen from developingcountries.Of course, the type of organizational relation or type of contract between the subcontracted is are companies and the contractingcompanies privateand the companies not willing to discloseit. These transnational security companies have created a labyrinth of contracts and subcontracts difficult to disentangle. Several companies, often from different countries, are implicated in the same contract. The contracts' clauses force the recruited individuals to renounce to important rights such as the jurisdictional competenceof their national courts. Their contractsindicate that they are recruited as security guards but they are trained and militarily armed for a conflict. In addition, the contractsare generally signed after departingfrom their respectivecountries. In this labyrinth of contractsand subcontractsit would be interestingto know if there are mechanismsthat can be used and which are the United States authoritiesto whom the ex- militaries and ex- policemen or their familieswhose rights have beenviolated could bring their complaintsto obtainreparation. "private The companies'activities contracting ex- militaries and ex- policemen as security guards" perform mercenary related activities such as recruitment, training, financingand use of peoplewithin a commerciallogicof profit. The lossesof private guards or independentcontractorswould already be over I 000 wounded.According to informationreceived, casualties and some thirteenthousand those who were involved or their relativeswould encounterenormousdifficulties to obtain reparation based on the contracted insurance policies at the moment of

recruitment.Another of the underlyingproblemsis the social reintegration the of "privateguards"who have been operating unlawfully in situations like thoseof Iraq or Afghanistan, receivingmuch higherpayments than thoseofferedto them in their respective countries, only for the psychological not traumas a resultof what they as have been living but also by the adaptation difficulties at the moment of being reintegrated a society in with socialrulesanda legalorder. Sinceour first report,we have calledthe attentionof the GeneralAssemblyon the irnpunityin which the rnilitaryand privatesecuritycompanies operate, which violate humanrightsin low intensity armedconflictor postconflictsituations. Mr. Chair,I would like to insiston the fact that the outsourcing military functions of and the supplyingin zonesof armedconflict or post conflict of military and security services transnationalcompanies by would be leading the privatization war. This to of new phenomenonraisesto the international communityseriouspolitical, legal and humanrightsproblems related with the useof forceby non-state actors, well as the as lack of transparency oversight and with which they operate The monopolyof the use . of force has beenat the basisof nationalsovereignty several for centuries and of the collective securitysystemembodiedin the Charterof the United Nations.In this respect,through the questionnaire that we sent to Member States in order to implernent GeneralAssemblyresolution 6l/15l , we asked whetherthey had adopted measures regulate outsourcingof functions to the traditionally carriedout by members the armedforces; of andwhat functions theyconsidered couldnot be carried out by the private sector.In addition to the twenty-three Statesthat appearin the report, we have receivedcommunications from the Governments Bosnia and of Herzegovina,Italy and the Dominican Republic.Within this context, the Italian authoritiesunderlinethe wide and well-extended multifacetedforms of military servicesincludingactivitiesby the private sectorat the international level and the needto introduce specificnormative a frarnework.

To conclude, Mr. Chair,I would like to express concerns the Working Group, the of regardingthe recruitmentand training of thousands citizens from all over the of world, from developed and developingcountriesby private securitycompanies to performtasksin Afghanistan, Iraq or in otherzonesof armedconflict. We consider that the use of "independent contractors" "securityguards"by private security or transnational companies operate situations low intensity to in of armedconflictor post conflict are the new manifestations mercenarism the XXI century.One of the of of recommendations we makein our reportto the General that Assembly to insiston is the fact that States prohibitthe intervention military and private shouldspecifically of securitycompanies all the conflictsor armedaction,internalor international, in which intends destabilize constitutional to a regime. Considering difficulties that Statescoming out from war encounter order to the in regulateand control military and privatesecuritycompanies, considerable of a part the responsibilifyfalls on Statesfrom which thesetransnational companies export military and securityservices. exhortthoseStates We wherethe exportingcompanies are registered regulate to and controlthe military and privatesecuritycompanies and to not grant immunity to the personnel; investigate to and bring to the courts the

privatesecurityguardswho have perpetrated crimesand humanrights violationsin Iraqor in othersituations. Thankyou very muchfor your attention