
	by Jose L. Gomez del Prado
	November 8, 2010
	from 
	GlobalResearch Website
	
		
			
				
				 
				
				 
				
				 
				
				
				
				
				 
				
				
				The 
				
				United Nations Human 
				Rights Council, under the Universal Periodic Review, 
				
				
				started on 
				5 November 2010 in Geneva, reviewing the human rights record of 
				the United States.
				
				
				The following is an edited version of the 
				presentation given by  
				
				
				Jose L. Gomez del Prado in Geneva on 3 
				November 2010  
				
				
				at a parallel meeting at the UN Palais des Nations 
				on that occasion.
				
				 
				
				 
				
				
				
				
				
			
		
	
	
	 
	
	 
	
	Private military and security companies (PMSC) 
	are the modern reincarnation of a long lineage of private providers of 
	physical force: corsairs, privateers and mercenaries. 
	
	 
	
	Mercenaries, which had practically disappeared 
	during the XIXth and XXth centuries, reappeared in the 1960’s during the 
	decolonization period operating mainly in Africa and Asia. Under the United 
	Nations a convention was adopted which outlaws and criminalizes their 
	activities. 
	
	 
	
	Additional 
	
	Protocol I of the Geneva Conventions also contains a 
	definition of mercenary. 
	
	These non-state entities of the XXIst century operate in extremely blurred 
	situations where the frontiers are difficult to separate. The new security 
	industry of private companies moves large quantities of weapons and military 
	equipment. It provides services for military operations recruiting former 
	militaries as civilians to carry out passive or defensive security. 
	
	However, these individuals cannot be considered as civilians, given that 
	they often carry and use weapons, interrogate prisoners, load bombs, drive 
	military trucks and fulfill other essential military functions. 
	
	 
	
	Those who are armed can easily switch from a 
	passive/defensive to an active/offensive role and can commit human rights 
	violations and even destabilize governments. They cannot be considered 
	soldiers or supporting militias under international humanitarian law either, 
	since they are not part of the army or in the chain of command, and often 
	belong to a large number of different nationalities.
	
	PMSC personnel cannot usually be considered to be mercenaries for the 
	definition of mercenaries as stipulated in the international conventions 
	dealing with this issue does not generally apply to the personnel of PMSCs 
	which are legally operating in foreign countries under contracts of legally 
	registered companies. 
	
	Private military and security companies operate in a legal vacuum: they pose 
	a threat to civilians and to international human rights law. 
	
	 
	
	The UN Human Rights Council has entrusted the UN 
	Working Group on the use of mercenaries, principally, with the mandate:
	
	
		
		“To monitor and study the effects of the 
		activities of private companies offering military assistance, 
		consultancy and security services on the international market on the 
		enjoyment of human Rights (…) and to prepare draft international basic 
		principles that encourage respect for human rights on the part of those 
		companies in their activities”.
		
		 
	
	
	
	
	
	
	 
	
	 
	
	During the past five years, the Working Group 
	has been studying emerging issues, manifestations and trends regarding 
	private military and security companies. 
	
	 
	
	In our reports we have informed the Human Rights 
	Council and the General Assembly about these issues. 
	
	 
	
	Of particular importance are the reports of,
	
		
			- 
			
			the Working Group to the last session of 
			the Human Rights Council, held in September 2010 
- 
			
			on the Mission to the United States of 
			America (20 July to 3 August 2009), Document A/HRC/15/25/Add 3 
- 
			
			on the Mission to Afghanistan (4-9 April 
			2009), Document A/HRC/15/25/Add 2 
- 
			
			the general report of the Working Group 
			containing the Draft of a possible Convention on Private Military 
			and Security Companies (PMSCs) for consideration and action by the 
			Human Rights Council, Document A/HRC/15/25 
	
	In the course of our research, since 2006, we 
	have collected ample information which indicate the negative impact of the 
	activities of “private contractors”, “private soldiers” or “guns for hire”, 
	whatever denomination we may choose to name the individuals employed by 
	private military and security companies as civilians but in general heavily 
	armed. 
	
	 
	
	In the cluster of human rights violations 
	allegedly perpetrated by employees of these companies, which the Working 
	Group has examined one can find: summary executions, acts of torture, cases 
	of arbitrary detention; of trafficking of persons; serious health damages 
	caused by their activities; as well as attempts against the right of 
	self-determination. 
	
	 
	
	It also appears that PMSCs, in their search for 
	profit, neglect security and do not provide their employees with their basic 
	rights, and often put their staff in situations of danger and vulnerability.
	
 
	
	 
	
	 
	
	
	Summary executions
	
	On 16 September 2007 in Baghdad, employees of the US-based firm 
	Blackwater 
	[1] were involved in a shooting incident in Nisoor Square in which 17 
	civilians were killed and more than 20 other persons were wounded including 
	women and children. 
	
	 
	
	Local eyewitness accounts indicate the use of 
	arms from vehicles and rocket fire from a helicopter belonging to this 
	company. 
	
	There are also concerns over the activities and approach of PMSC personnel, 
	their convoys of armored vehicles and their conduct in traffic, in 
	particular their use of lethal force. This particular incident was not the 
	first of its kind, neither the first involving Blackwater.
	
	According to a congressional report on the behavior of Xe/Blackwater in 
	Iraq, Xe/Blackwater guards were found to have been involved in nearly 200 
	escalation-of-force incidents that involved the firing of shots since 2005.
	
	
	 
	
	Despite the terms of the contracts which 
	provided that the company could engage only in defensive use of force, the 
	company reported that in over 80 per cent of the shooting incidents, its 
	forces fired the first shots.
	
	 
	
	 
	
	
	
	
	 
	
	 
	
	In Najaf in April 2004 and on several other 
	occasions, employees of this company took part in direct hostilities, as 
	well as in May 2007, where another incident involving the same company 
	reportedly occurred involving guards belonging to the company and forces 
	belonging to the Iraqi Ministry of the Interior allegedly exchanged gunfire 
	in a sector of Baghdad.
	
	Also in central Baghdad the shooting of employees of the PMSC, 
	
	Unity 
	Resources Group (URG),[2] protecting a convoy, left two Armenian 
	women, Genevia Antranick and Mary Awanis dead on 9 October 2007 when their 
	car came too close to a protected convoy. The family of Genevia Antranick 
	was offered no compensation and has begun court proceedings against URG in 
	the United States.
	
	This company was also involved in the shooting of 72-year-old Australian 
	Kays Juma. 
	
	 
	
	Professor Juma was shot in March 2006 as he 
	approached an intersection being blockaded for a convoy URG was protecting. 
	Professor Juma, a 25-year resident of Baghdad who drove through the city 
	every day, allegedly sped up his vehicle as he approached the guards and did 
	not heed warnings to stop, including hand signals, flares, warning shots 
	into the body of his car and floodlights. 
	
	 
	
	The incident occurred at 10am.[3]
 
	
	 
	
	 
	
	
	Torture
	
	
	Two United States-based corporations, 
	
	CACI and L-3 Services (formerly 
	
	Titan 
	Corporation), were involved in the 
	
	torture of Iraqi detainees at Abu Ghraib.
	
	
	 
	
	CACI and L-3 Services, contracted by the 
	Government of the United States, were responsible for interrogation and 
	translation services, respectively, at Abu Ghraib prison and other 
	facilities in Iraq. 
	
	Seventy two Iraqi citizens who were formerly detained at military prisons in 
	Iraq, have sued L-3 Services, Inc. (“L-3”), a military private contractor 
	which provided civilian translators for United States military forces in 
	Iraq and Adel Nakhla, a former employee of L-3 who served as one of its 
	translators there under the Alien Tort Statute. 
	
	 
	
	They allege having been tortured and physically 
	and mentally abused during their detention and that they should be held 
	liable in damages for their actions. 
	
	 
	
	The plaintiffs assert 20 causes of action, among 
	which: 
	
	
		
			- 
			
			torture 
- 
			
			cruel, inhuman, or degrading treatment 
- 
			
			assault and battery 
- 
			
			intentional infliction of emotional distress.[4]
			 
	
	 
	
	
	
	
	 
	
	
	
	
	
	Arbitrary detention
	
	
	A number of reports indicate that private security guards have played 
	central roles in some of the most sensitive activities of the Central 
	Intelligence Agency (CIA) such as the arbitrary detention and clandestine 
	raids against alleged insurgents in Iraq and Afghanistan [5] and the 
	involvement in CIA rendition flights [6] as well as joint covert 
	operations.[7] 
	
	 
	
	Employees of PMSC would have been involved in 
	the taking of detainees, from “pick up points” (such as Tuzla, Islamabad or 
	Skopje) transporting them in rendition flights and delivering them to drop 
	off points (such as Cairo, Rabat, Bucharest, Amman or Guantanamo) as well as 
	in the construction, equipping and staffing of CIA’s “black sites”.
	
	Within this context, the American Civil Liberties Union has filed a lawsuit 
	in May 2007 against 
	
	Jeppesen DataPlan Inc. (a subsidiary company of Boeing) 
	on behalf of five persons who were kidnapped by the CIA disappearing in 
	overseas prisons kept by USA secret services. Jeppesen would have 
	participated in the rendition by providing flight planning and logistical 
	support. 
	
	 
	
	The five persons were tortured during their 
	arbitrary detention.[8] 
 
	
	 
	
	 
	
	
	Health
	
	The 2009 annual report of 
	
	DynCorp International refers to four lawsuits 
	concerning the spraying of narcotic plant crops along the Colombian border 
	adjacent to Ecuador on behalf of 3 Ecuadorian Providences and 3266 
	plaintiffs.[9]
	
	From 1991, the United States Department of State contracted the private 
	company DynCorp to supply services for this air-spraying program against 
	narcotics in the Andean region. 
	
	 
	
	In accordance with the subscribed contract of 30 
	January 1998, DynCorp provides the essential logistics to the anti-drug 
	Office of activities of Colombia, in conformity with three main objectives:
	
	
		
			- 
			
			eradication of cultivations of illicit 
			drugs 
- 
			
			training of the army and of personnel of 
			the country 
- 
			
			dismantling of illicit drug laboratories 
			and illicit drug-trafficking networks 
	
	An NGO report indicated the consequences of the 
	spraying carried out within the 
	
	Plan Colombia had on persons living in the 
	frontier region.[10] 
	
	 
	
	One third of the 47 women in the study exposed 
	to the spraying showed cells with some genetic damage. The study established 
	the relationship of the air fumigations of the Plan Colombia with damages in 
	the genetic material. 
	
	 
	
	The study demonstrates that when the population 
	is subjected to fumigations,
	
		
		“the risk of cellular damage can increase and 
	that, once permanent, the cases of cancerous mutations and important 
	embryonic alterations are increased that prompt among other possibilities 
	the rise in abortions in the area."
		
		 
	
	
	
	
	
	 
	
	 
	
	This example is particularly important given 
	that Plan Colombia has served as the model for the arrangements that the 
	United States would apply later to Iraq and Afghanistan. 
	
	 
	
	Plan Colombia provides immunity to the employees 
	of the PMSC contracted (DynCorp) the same as Order 14 of the Coalition 
	Provisional Authority did in Iraq.
 
	
	 
	
	 
	
	
	Self-determination
	
	The 2004 attempted coup d’état, which was perpetrated in Equatorial Guinea 
	is a clear example of the link between the phenomenon of mercenaries and 
	PMSCs as a means of violating the sovereignty of States. 
	
	 
	
	In this particular case, the mercenaries 
	involved were mostly former directors and personnel of Executive Outcomes, a 
	PMSC that had become famous for its operations in Angola and Sierra Leone. 
	The team of mercenaries also included security guards who were still 
	employed by PMSCs as was the case of two employees of the company Meteoric 
	Tactical Systems providing security to diplomats of Western Embassies in 
	Baghdad-among which to the Ambassador of Switzerland. 
	
	 
	
	It also included a security guard who had 
	previously worked for the PMSC “Steele Foundation” and had given protection 
	to President Aristide of Haiti and conducted him to the plane who took him 
	to exile.[11]
 
	
	 
	
	 
	
	
	Trafficking in persons
	
	In 2005, 105 Chileans were providing/or undergoing military training in the 
	
	former army base of Lepaterique in Honduras. 
	
	 
	
	The instruction consisted in anti-guerrilla 
	tactics such as possible ambushes and deactivation of explosives and mortars 
	how to avoid them. The Chileans had entered Honduras as tourists and were 
	illegally in Honduras. They used high-caliber weapons such as M-16 rifles or 
	light machine guns. They had been contracted by a subsidiary of 
	
	Triple 
	Canopy.
	
	They were part of a group, which included also 189 Hondurans recruited and 
	trained in Honduras. Triple Canopy had been awarded a contract by the United 
	States Department of State. The strong contingent left the country by air 
	from San Pedro Sula, Honduras, in several groups with a stopover in Iceland. 
	Then reached the Middle East and were smuggled into Iraq.[12]
	
	The majority of the Chileans and Hondurans were engaged as security guards 
	at fixed facilities in Iraq. 
	
	 
	
	They had been contracted by Your Solutions 
	Honduras SRL, a local agent of 
	
	Your Solutions Incorporated, registered in 
	Illinois, United States of America, which in turn had been subcontracted by 
	Triple Canopy, based in Chicago, United States of America. 
	
	 
	
	Some of the Chileans are presently working in 
	Baghdad providing security to the Embassy of Australia under a contract by 
	
	Unity Resources Group (URG).
	
	 
	
	 
	
	
	
	
	 
	
	
	
	
	
	Human rights 
	violations committed by PMSC to their employees
	
	PMSC often put the contracted private guards in situations of danger and 
	vulnerability, such as the ‘private contractors’ of Blackwater, killed in 
	Fallujah in 2004 allegedly due to the lack of the necessary safety means 
	that Blackwater was supposed to provide in order to carry out the mission.
	
	 
	
	 
	
	
	
	
	 
	
	 
	
	It should not be forgotten that this incident 
	changed dramatically the course of the war and the occupation by the United 
	States in Iraq. 
	
	 
	
	It may be considered as the turning point in the 
	occupation of Iraq. This led to an abortive US operation to recapture 
	control of the city and a successful recapture operation in the city in 
	November 2004, called Operation Phantom Fury, which resulted in the death of 
	over 1,350 insurgent fighters. 
	
	 
	
	Approximately 95 America troops were killed, 
	and 560 wounded.
	
	The U.S. military first denied that it has use white phosphorus as an 
	anti-personnel weapon in Fallujah, but later retracted that denial, and 
	admitted to using the incendiary in the city as an offensive weapon. 
	
	 
	
	Reports following the events of November 2004 
	have alleged war crimes, and a massacre by U.S. personnel, including 
	indiscriminate 
	
	violence against civilians and children. 
	
	 
	
	This point of view is presented in the 2005 documentary 
	film, 
	“Fallujah, the Hidden Massacre” 
	below. 
	
	 
	
	 
	
	 
	
	 
	
	
	 
	
	 
	
	 
	
	 
	
	In 2010, the International Journal of 
	Environmental Research and Public Health, a leading medical journal, 
	published a study, which shows that the rates of cancer, infant mortality 
	and leukemia exceed those reported in Hiroshima and Nagasaki.[13]
	
	The over 300 000 classified military documents made public by 
	
	Wikileaks show 
	that the “Use of Contractors Added to War’s Chaos in Iraq”, as has been 
	widely reported by the international media recently.
	
	The United States has relied and continues to rely heavily on private 
	military and security contractors in conducting its military operations. The 
	United States used private security contractors to conduct narcotics 
	intervention operations in Colombia in the 1990s and recently signed a 
	supplemental agreement that authorizes it to deploy troops and contractors 
	in seven Colombian military bases. 
	
	 
	
	During the conflict in the Balkans, the United 
	States used a private security contractor to train Croat troops to conduct 
	operations against Serbian troops. Nowadays, it is in the context of its 
	operations in Iraq and Afghanistan in particular that the State is massively 
	contracting out security functions to private firms.
	
	In 2009, the Department of Defense employed 218,000 private contractors (all 
	types) while there were 195,000 uniformed personnel. According to the 
	figures, about 8 per cent of these contractors are armed security 
	contractors, i.e. about 20,000 armed guards. 
	
	 
	
	If one includes other theatres of operations, 
	the figure rises to 242,657, with 54,387 United States citizens, 94,260 
	third country nationals and 94,010 host-country nationals.
	
	The State Department relies on about 2,000 private security contractors to 
	provide United States personnel and facilities with personal protective and 
	guard services in Afghanistan, Iraq, Israel and Pakistan, and aviation 
	services in Iraq. 
	
	 
	
	The contracts for protective services were 
	awarded in 2005 to three PMSCs, namely, 
	
		
	
	
	These three companies still hold the State 
	Department protective services contracts today.
 
	
	 
	
	 
	
	
	Lack of transparency
	
	The information accessible to the public on the scope and type of contracts 
	between the Government of the United States and PMSCs is scarce and opaque.
	
	
	 
	
	The lack of transparency is particularly 
	significant when companies subcontract to others. Often, the contracts with 
	PMSCs are not disclosed to the public despite extensive freedom of 
	information rules in the United States, either because they contain 
	confidential commercial information or on the argument that non-disclosure 
	is in the interest of national defense or foreign policy. 
	
	 
	
	The situation is particularly opaque when United 
	States intelligence agencies contract PMSCs.
 
	
	 
	
	 
	
	
	Lack of accountability
	
	Despite the fact of their involvement in grave human rights violations, not 
	a single PMSC or employee of these companies has been sanctioned.
	
	In the course of litigation, several recurring legal arguments have been 
	used in the defense of PMSCs and their personnel, including the Government 
	contractor defense, the political question doctrine and derivative immunity 
	arguments. PMSCs are using the Government contractor defense to argue that 
	they were operating under the exclusive control of the Government of the 
	United States when the alleged acts were committed and therefore cannot be 
	held liable for their actions.
	
	It looks as if when the acts are committed by agents of the government they 
	are considered human rights violations but when these same acts are 
	perpetrated by PMSC it is “business as usual”.
	
	The human rights violation perpetrated by private military and security 
	companies are indications of the threat posed to the foundations of 
	democracy itself by the privatization of inherently public functions such as 
	the monopoly of the legitimate use of force. In this connection I cannot 
	help but to refer to the final speech of President Eisenhower.
	
	In 1961, President Eisenhower 
	
	warned the American public opinion 
	against the growing danger of a military industrial complex stating: 
	
		
		“(…) we must guard against the acquisition 
		of unwarranted influence, whether sought or unsought, by the military 
		industrial complex. The potential for the disastrous rise of misplaced 
		power exists and will persist. We must never let the weight of this 
		combination endanger our liberties or democratic processes. 
		 
		
		We should take nothing for granted. Only an 
		alert and knowledgeable citizenry can compel the proper meshing of the 
		huge industrial and military machinery of defense with our peaceful 
		methods and goals, so that security and liberty may prosper together”.
	
	
	Fifty years later, on 8 September 2001, 
	Donald Rumsfeld in his speech in the Department of Defense warned the 
	militaries of the Pentagon against,
	
		
		“an adversary that poses a threat, a serious 
		threat, to the security of the United States of America (…) Let's make 
		no mistake: The modernization of the Department of Defense is (…) a 
		matter of life and death, ultimately, every American's. (…) The 
		adversary. (…) It's the Pentagon bureaucracy. (…)
		 
		
		That's why we're here today challenging us 
		all to wage an all-out campaign to shift Pentagon's resources from 
		bureaucracy to the battlefield, from tail to the tooth. We know the 
		adversary. We know the threat. And with the same firmness of purpose 
		that any effort against a determined adversary demands, we must get at 
		it and stay at it. 
		 
		
		Some might ask, how in the world could the 
		Secretary of Defense attack the Pentagon in front of its people? To them 
		I reply, I have no desire to attack the Pentagon; I want to liberate it. 
		We need to save it from itself."
	
	
	Rumsfeld should have said the shift from the 
	Pentagon’s resources from bureaucracy to the private sector. 
	
	 
	
	Indeed, that shift had been accelerated by 
	the 
	Bush Administration: the number of persons employed by contract which had 
	been outsourced (privatized) by the Pentagon was already four times more 
	than at the Department of Defense.
	
	It is not anymore a military industrial complex but as 
	Noam Chomsky has 
	indicated,
	
		
		"it's just the industrial system operating 
		under one or another pretext”.
	
	
	The articles of the Washington Post “Top Secret 
	America - A hidden world, growing beyond control”, by Dana Priest and 
	William 
	M. Arkin (19 July 2010) show the extent that,
	
		
		“The top-secret world the government created 
		in response to the terrorist attacks of Sept. 11, 2001, has become so 
		large, so unwieldy and so secretive that no one knows how much money it 
		costs, how many people it employs, how many programs exist within it or 
		exactly how many agencies do the same work”.
	
	
	The investigation's findings include that some 
	1,271 government organizations and 1,931 private companies work on programs 
	related to counterterrorism, homeland security and intelligence in about 
	10,000 locations across the United States; and that an estimated 854,000 
	people, nearly 1.5 times as many people as live in Washington, D.C., hold 
	top-secret security clearances. 
	
	 
	
	A number of private military and security 
	companies are among the security and intelligence agencies mentioned in the 
	report of the Washington Post.
	
	The Working Group received information from several sources that up to 70 
	per cent of the budget of United States intelligence is spent on 
	contractors. These contracts are classified and very little information is 
	available to the public on the nature of the activities carried out by these 
	contractors.
	
	The privatization of war has created a structural dynamic, which responds to 
	a commercial logic of the industry.
	
	A short look at the careers of the current managers of BAE Systems, as well 
	as on their address-books, confirms we are not any longer dealing with a 
	normal corporation, but with a cartel uniting high tech weaponry,
	
		
	
	
	...with speculative financiers,
	
		
			- 
			
			Lazard Frères 
- 
			
			Goldman Sachs 
- 
			
			Deutsche Bank,  
	
	...together with raw 
	material cartels,
	
		
			- 
			
			British Petroleum 
- 
			
			Shell Oil, 
	
	...with on the ground, private 
	military and security companies.[14]
	
	The majority of the private military and security companies has been created 
	or are managed by former militaries or ex-policemen for whom it is big 
	business. Just to give an example 
	
	MPRI (Military Professional Resources 
	Incorporation) was created by four former generals of the United States Army 
	when they were due for retirement.[15] 
	
	 
	
	The same is true for Blackwater and its 
	affiliate companies or subsidiaries, which employ former directors of the 
	C.I.A..[16] Social Scientists refer to this phenomenon as the 
	Rotating Door Syndrome. 
	
	 
	
	The use of security contractors is expected to grow as American forces 
	shrink. 
	
	 
	
	A July report by the 
	
	Commission on Wartime 
	Contracting, a panel established by Congress, estimated that the State 
	Department alone would need more than double the number of contractors it 
	had protecting the American Embassy and consulates in Iraq.
	
		
		“Without contractors: 
		
			
				- 
				
				the military engagement would have 
				had to be smaller--a strategically problematic alternative 
- 
				
				the United States would have had to 
				deploy its finite number of active personnel for even longer 
				tours of duty -a politically dicey and short-sighted option 
- 
				
				the United States would have had to 
				consider a civilian draft or boost retention and recruitment by 
				raising military pay significantly - two politically untenable 
				options 
- 
				
				the need for greater commitments 
				from other nations would have arisen and with it, the United 
				States would have had to make more concessions to build and 
				sustain a truly multinational effort.  
		
		Thus, the tangible differences in the type 
		of war waged, the effect on military personnel, and the need for 
		coalition partners are greatly magnified when the government has the 
		option to supplement its troops with contractors”.[17]
	
	
	The military cannot do without them. There are 
	more contractors over all than actual members of the military serving in the 
	worsening war in Afghanistan.
	
 
	
	 
	
	 
	
	
	CONCLUSIONS OF THE SENATE ARMED SERVICES 
	COMMITTEE 
	
	Impact of Private Security Contracting on U.S. Goals in 
	Afghanistan [18]
 
	
		
			- 
			
			Conclusion I 
			The proliferation of private security 
			personnel in Afghanistan is inconsistent with the counterinsurgency 
			strategy. In May 2010 the U.S. Central Command's Armed Contractor 
			Oversight Directorate reported that there were more than 26,000 
			private security contractor personnel operating in Afghanistan.  
			  
			Many 
			of those private security personnel are associated with armed groups 
			that operate outside government control.
 
 
- 
			
			Conclusion 2 
			Afghan warlords and strongmen operating 
			as force providers to private security contractors have acted 
			against U.S. and Afghan government interests. Warlords and strongmen 
			associated with U.S.-funded security contractors have been linked to 
			anti Coalition activities, murder, bribery, and kidnapping.  
			  
			The 
			Committee's examination of the U.S. funded security contract with ArmorGroup at Shindand Airbase in Afghanistan revealed that 
			ArmorGroup relied on a series of warlords to provide armed men to 
			act as security, guards at the Airbase. 
	
	 
	
	 
	
	
	
	Open-ended 
	intergovernmental working group established by the HR Council
	
	Because of their impact in the enjoyment of human rights the Working Group 
	on mercenaries in its 2010 reports to the UN Human Rights Council and 
	General Assembly has recommended a legally binding instrument regulating and 
	monitoring their activities at the national and international level.
	
	The motion to create an open ended intergovernmental working group has been 
	the object of lengthy negotiations, in the Human Rights Council, led by 
	South Africa in order to accommodate the concerns of the Western Group, but 
	primarily those of the United States and the United Kingdom and of a lot a 
	pressure exerted in the capitals of African countries supporting the draft 
	resolution. 
	
	 
	
	The text of the resolution was weakened in order 
	to pass the resolution by consensus. 
	
	 
	
	But even so the position of the Western 
	States has been a “fin de non recevoir”.
	
	The resolution was adopted by a majority of 32 in favor, 12 against and 3 
	abstentions. Among the supporters of this initiative are four out of the 
	five members of BRICS (Brazil, Russia, China and South Africa) in addition 
	to the African Group, the Organization of the Islamic Conference and the 
	Arab Group.
	
	The adoption of this resolution opens an interesting process in the UN Human 
	Rights Council where civil society can participate in the elaboration of an 
	international framework on the regulation, monitoring and oversight of the 
	activities of private military and security companies. 
	
	 
	
	The new open ended intergovernmental working 
	group will be the forum for all stakeholders to receive inputs, not only the 
	draft text of a possible convention and the elements elaborated by the UN 
	Working Group on mercenaries but also of other initiatives such as the 
	proposal submitted to the Parliamentary Assembly of the Council of Europe, 
	the Montreux Document and the international code of conduct being elaborated 
	under the Swiss Initiative.
	
	However, the negative vote of the delegations of the Western Group indicates 
	that the interests of the new staggering security industry - its annual 
	market revenue is estimated to be over USD one hundred billion - have been 
	quite well defended as was the case in a number of other occasions. It also 
	shows that Western governments will be absent from the start in a full 
	in-depth discussion of the issues raised by the activities of PMSC.
	
	We urge all States to support the process initiated by the Council by 
	designating their representatives to the new open-ended intergovernmental 
	working group, which will hold its first session in 2011, and to continue a 
	process of discussions regarding a legally binding instrument.
	
	The participation of the UK and USA main exporters of these activities (it 
	is estimated at 70% the industry of security in these two countries) as well 
	as other Western countries where the new industry is expanding is of 
	particular importance.
	
	The Working Group also urges the United States Government to implement the 
	recommendations we made, in particular, to:
	
		
			- 
			
			support the Congress Stop Outsourcing 
			Security (SOS) Act, which clearly defines the functions which are 
			inherently governmental and that cannot be outsourced to the private 
			sector 
- 
			
			rescind immunity to contractors carrying 
			out activities in other countries under bilateral agreements 
- 
			
			carry out prompt and effective 
			investigation of human rights violations committed by PMSCs and 
			prosecute alleged perpetrators 
- 
			
			ensure that the oversight of private 
			military and security contractors is not outsourced to PMSCs
 establish a specific system of federal licensing of PMSCs for their 
			activities abroad
 
- 
			
			set up a vetting procedure for awarding 
			contracts to PMSCs 
- 
			
			ensure that United States criminal 
			jurisdiction applies to private military and security companies 
			contracted by the Government to carry out activities abroad 
- 
			
			respond to pending communications from 
			the Working Group 
	
	
	 
	
	
	
	Notes
	
		
		[1] Blackwater Worldwide abandoned its 
		tarnished brand name in order to shake its reputation battered by its 
		criticized work in Iraq, renaming its family of two-dozen businesses 
		under the name Xe’, see Mike Baker, ‘Blackwater dumps tarnished brand 
		name’, AP News Break, 13 February 2009.
		[2] URG, an Australian private military and security company, uses a 
		number of ex military Chileans to provide security to the Australian 
		Embassy in Baghdad. Recently one of those “private guards” shot himself, 
		ABC News, reported by La Tercera, Chile, 16 September 2010.
		[3]J.Mendes & S Mitchell, “Who is Unity Resources Group?”, ABC News 
		Australia, 16 September 2010.
		[4] Case 8:08-cv-01696-PJM, Document 103, Filed 07/29/10. Defendants 
		have filed Motions to Dismiss on a number of grounds. They argue, among 
		others, that the suit must be dismissed in its entirety because they are 
		immune under the laws of war, because the suit raises non-justiciable 
		political questions, and because they possess derivative sovereign 
		immunity. They seek dismissal of the state law claims on the basis of 
		government contractor immunity, premised on the notion that Plaintiffs 
		cannot proceed on state law claims, which arise out of combatant 
		activities of the military. The United States District Court for the 
		district of Maryland Greenbelt Division has decided to proceed with the 
		case against L-3 Services, Inc. It has not accepted the motions to 
		dismiss allowing the case to go forward.
		[5] Mission to the United States of America, Report of the Working Group 
		on the use of mercenaries, United Nations document, A/HRC/15/25/Add.3, 
		paragraphs 22.
		[6] James Risen and Mark Mazzetti, “Blackwater guards tied to secret 
		C.I.A. raids ”, New York Times, 10 December 2009.
		[7] Adam Ciralsky, “Tycoon, contractor, soldier, spy”, Vanity Fair, 
		January 2010. See also Claim No. HQ08X02800 in the High Court of 
		Justice, Queen’s Bench Division, Binyam Mohamed v. Jeppesen UK Ltd, 
		report of James Gavin Simpson, 26 May 2009.
		[8]ACLU Press Release, UN Report Underscores Lack of Accountability and 
		Oversight for Military and Security Contractors, New York, 14 September 
		2010.
		[9] The reports also indicates that the Revenues of DynCorp for 2006 
		were of USD 1 966 993 and for 2009 USD 3 101 093
		[10] Mission to Ecuador, Report of the Working Group on the use of 
		mercenaries, United Nations document, A/HRC/4/42/Add.2
		[11] A number of the persons involved in the attempted coup were 
		arrested in Zimbabwe, other in Equatorial Guinea itself the place where 
		the coup was intended to take place to overthrow the government and put 
		another in its place in order to get the rich resources in oil. In 2004 
		and 2008 the trials took place in Equatorial Guinea of those arrested in 
		connection with this coup attempt, including of the British citizen 
		Simon Mann and the South African Nick du Toit. The President of 
		Equatorial Guinea pardoned all foreigners linked to this coup attempt in 
		November 2009 by. A number of reports indicated that trials failed to 
		comply with international human rights standards and that some of the 
		accused had been subjected to torture and ill-treatment. The government 
		of Equatorial Guinea has three ongoing trials in the United Kingdom, 
		Spain and Lebanon against the persons who were behind the attempted 
		coup.
		[12] Report of the Working Group on the use of mercenaries, Mission to 
		Honduras, United Nations document A/HRC/4/42/Add.1.
		[13] Wikipedia
		[14] Mercenaries without borders by Karel Vereycken, Friday Sep 21st, 
		2007
		[15] Among which General Carl E. Vuono, Chief of the Army during the 
		Gulf War and the invasion of Panama; General Crosbie E. Saint, former 
		Commander in Chief of the USA Army in Europe and General Ron Griffith. 
		The President of MPRI is General Bantant J. Craddock.
		[16] Such as Cofer Black, former Chief of the Counter Terrorism Center; 
		Enrique Prado, former Chief of Operations and Rof Richter, second in 
		command of the Clandestine Services of the Company
		[17] Article published in the Spring 2010 issue of the University of 
		Chicago Law Review, titled "Privatization's Pretensions" by Jon D. 
		Michaels, Acting Professor of Law at the UCLA School of Law
		[18] INQUIRY INTO THE ROLE AND OVERSIGHT OF PRIVATE SECURITY CONTRACTORS 
		IN AFGHANISTAN, REPORT TOGETHER WITH ADDITIONAL VIEWS OF THE 
		COMMITTEE ON ARMED SERVICES UNITED STATES SENATE, 28 September 2010