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UN Working Group on the use mercenaries Mission to European Union institutions: Preliminary findings

Brussels, Belgium (29 April 2016) The Working Group on the use of mercenaries, represented by Chairperson Ms. Elzbieta Karska, undertook a visit to the European Union in Brussels, Belgium, from 25 to 28 April 2016. The Working Group wishes to thank the European Union (EU) for extending an invitation to visit and also expresses its appreciation for the meetings held with various representatives from the different functional entities as well as with members of civil society organisations. The Working Group also appreciates the support provided by the UN Regional Office for Europe in Brussels for the visit.

The Working Group is mandated by the UN Human Rights Council to monitor mercenaries, mercenary-related activities, and private military and security companies. In this regard, it studies and identifies sources, causes, emerging issues, manifestations and trends not only concerning mercenaries as defined in international law, but also mercenary-related activities and their impacts on human rights, notably on the rights of peoples to self-determination.  The Working Group thus aims to explore possible linkages between the phenomena of mercenarism and foreign fighters, and their impact on human rights and the right of peoples to self-determination. Its study on foreign fighters has involved country visits to Tunisia, Belgium and Ukraine, expert meetings, two public panels, as well as its 2015 report to the General Assembly.

The Working Group’s objectives on this visit were to consult in situ with relevant entities and actors in the European Union on the their work with respect to the activities of private military companies and foreign fighters, respectively, and their effects on human rights, particularly the right of peoples to self-determination. 

The information garnered through this visit will serve as input to the Working Group’s visit report to the Human Rights Council in September this year.

Foreign fighters

The visit comes at a time of amplified tension for the EU on the issue of foreign fighters. It followed the terrorist attack in Brussels on 22 March 2016 that resulted in the deaths of 32 victims, and reportedly injured over 300 persons, an attack executed at the airport and in a metro station close to EU buildings and claimed by the so-called “Islamic State for Syria and the Levant”. This comes on the heels of a series of similar incidents in the region, including an attack at the Jewish Museum in Brussels in May 2014, the January 2015 raids in Verviers, Belgium, the Charlie Hebdo attack in France also in that month, and attacks in Paris in November 2015.

The Working Group was informed that an estimated 5,000 to 6,000 foreign fighters in conflicts in the Middle East have originated from EU Member States, mostly from the United Kingdom, France, Germany and Belgium.  While the flow of foreign fighters has reportedly slowed in the last roughly 9 months, a marked increase has been observed in the participation of young people, with an average age of 20.5 years, as well as females.

With respect to motivations, these are reportedly quite varied and individualized.  Nonetheless, ideological and religious incentives apparently play a key role.  Also important is the need for a sense of belonging, to be part of an exciting project or to gain a greater sense of achievement in their lives. 

Financial compensation may also be a concern, if a less major one. On payment, it is reported that wages are higher for European fighters and are in the region of US$800-$1200 per month, while recruiters may be paid US$2,500 per month.  More recently, it is reported that, due to banks and other deposit points being destroyed by airstrikes, and diminishing profits from the oil trade, salaries are being cut, possibly by as much as half. Many fighters are also self-financing, or may be funded by petty crime or family members.  On financing of foreign fighter activity, the Working Group learned that the main sources have been oil and natural gas sales, extortion, trafficking in persons and goods, as well as sourcing funds directly through the foreign fighter network.

Recruitment is observed as largely through neighbourhood, peer and family networks, as well as through the internet and social media.

The EU institutions comprise a number of functional entities, some of which are more directly concerned with the issue of foreign fighters and have undertaken a number of measures, as outlined below.

In 2005 the EU Counter Terrorism Strategy was adopted by the European Council, and the position of EU Counter Terrorism Coordinator was established. The Counter Terrorism Coordinator drafted a series of 22 proposals, which were endorsed by the Council of the European Union Justice and Home Affairs Council in June 2013. These 22 action points are also reflected in the legally binding United Nations Security Council Resolution 2178 (UNSC 2178) of September 2014.

The Working Group reiterates its position, shared in its 2015 General Assembly Report (A/70/330), regarding human rights and international law concerns with the application of UNSC Resolution 2178.  In particular, it impinges on freedom of movement by effectively prohibiting travel to conflict zones, denying return of their own citizens or nationals, and possibly restricting the scope of humanitarian action in conflict zones. Under the Resolution, states may adopt powers to revoke citizenship, thus rendering persons stateless, while other may assume greater powers of surveillance and traveller risk assessment, violating the right to privacy.  Similarly, interpretation of the Resolution may lead to infringements of due process rights in the detention of suspects.  In addition, resolution 2178 does not acknowledge the relevance of international humanitarian law in armed conflict situations, including that mere participation in hostilities is not unlawful, while terrorist acts are indeed already prohibited, including attacks on civilians.

The Council of Europe (COE), formally a non-EU institution but whose laws apply to EU Member States, has developed and adopted a number of conventions. On 16 May 2005, it adopted the Convention on the Prevention of Terrorism to increase the effectiveness of existing international texts on the fight against terrorism.  Following the adoption of Security Council Resolution 2178 (2014), the Committee of Ministers of the Council of Europe initiated the drafting of an Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism and adopted it in October 2015. The Council of Europe also adopted a Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism, signed by the EU on 2 April 2009.

In terms of non-binding instruments, the COE Committee of Ministers adopted in May 2015 an Action Plan on the fight against violent extremism and radicalisation leading to terrorism.The COE Parliamentary Assembly of the Council of Europe adopted on 27 January 2016 Recommendation 2084, in which “the Assembly invites the Committee of Ministers to consider the feasibility of developing, at the level of the Council of Europe, a comprehensive legal definition of terrorism”.  On the same day, it also adopted Resolution 2091 which pointed out, inter alia, that “a security-oriented approach is not enough and stresses the need to put more emphasis on addressing the underlying factors of radicalisation, as well as on prevention, discouragement and reintegration policies which may yield long-term results.” It additionally underlined the need to share information and best practice and exchange experience, and the importance of co-ordinating efforts among all actors involved.

The Working Group very much commends the effort to develop a legal definition of terrorism.  While noting that the EU has been applying for some 12 years the definition of terrorist offences, augmented clarity through a comprehensive definition of terrorism will enforce the principle of legality and potentially mitigate selective interpretation of offences and related criminal liability.

There is no internationally agreed legal definition of foreign fighters, nor a specific regime governing them. The Working Group notes with some concern that there is similarly no operational definition of foreign fighter applied by the EU.  While Resolution 2178 includes a definition of foreign terrorist fighter, the Working Group asserts that this is distinct from foreign fighters, in that foreign fighters target armed forces as well as civilians, while foreign terrorist fighters target civilians.  The Working Group thus recommends that the Assembly seize the opportunity to clearly define terrorism, as well as foreign fighters and foreign terrorist fighters in conformity with international law.

The European Commission adopted a new European Agenda on Security 2015-2020 in April 2015 to support better cooperation between Member States in the fight against terrorism, organised crime and cybercrime. In the Agenda, the Commission announced its intention to review and update the Framework Decision on terrorism in the course of 2016, taking into account the provisions of the above Additional Protocol. This will take the form of a Directive, currently under consideration. Framework Decision 2002/475/JHA on combating terrorism was amended by the Council Framework Decision 2008/919/JHA, requiring Member States to criminalise public provocation to commit a terrorist offence, recruitment for terrorism, as well as providing (but not receiving) training for terrorism. The Commission also introduced the Additional Protocol to the European Convention on the Prevention of Terrorism to implement UN SC Resolution 2178.

The Working Group recalls again its concerns with UNSC Resolution 2178.  In addition, with respect to the proposed Directive, it notes with concern that an impact assessment, including a human rights impact assessment, will not be undertaken for this Directive, despite the fact that this is otherwise standard practice in the introduction of legislation for the EU.  It has also been brought to our attention that the process for adoption of the Directive has not involved wide consultation with civil society actors.  The Working Group was advised that the reasons accounting for this are the public urgency attached to responding to the perception of a growing foreign fighter threat, the assertion that it would not be necessary to do an impact assessment for legislation that has been made mandatory, and that the new Directive draws largely on pre-existing legislation and thus need not be assessed.  The Working Group urges the EU Commission and EU Parliament to reconsider this approach, to acknowledge the procedural aspects of human rights and democracy, and to make use of any time before the Directive’s adoption for consultations and human rights assessment.

Also on the Directive, the Working Group notes that acts are criminalized even if they are far from the principal offence of terrorism, and that there is lack of clarity on the nature of intent related to an offence.  The Working Group recommends the development of principles on how intent can be better established, beyond assigning burden of proof to the suspect.

The Civil liberties, Justice and Home affairs Committee of the European Parliament adopted a non-binding report on 20 October 2015 related to the foreign fighters issue. The Committee recommended ways to discourage recruitment of EU citizens as “foreign fighters” and call on EU member states to step up judicial cooperation to this end. This strategy of discouragement should involve foreign policy, social policy, education policy, law enforcement and justice, with an emphasis on preventive rather than reactive measures and on respect for fundamental rights.  On 14 April 2016, the European Parliament voted in favour of a Passenger Name Record (PNR) Directive. The Directive effectively regulates the transmission of PNR data by air carriers to Member States, including on intra-EU flights.

The Working Group strongly supports the report recommendations. In its study of foreign fighters and corresponding country visits, the Working Group has emphasized the need for balance between preventive and social measures against security-oriented and punitive measures.  In the particular EU context, special attention must to be paid to efforts in integration of minorities and migrants, and to the associated rights to equal treatment and access to opportunities.  On the PNR Directive, the Working Group urges that it be implemented with explicit respect to the protection of the right to privacy by EU citizens.

The Working Group encourages the convening of public hearings by the European Parliament on human rights on the issue of foreign fighters, with a view to linking human rights to the issue of foreign fighters is conceived and addressed at the EU level.

The European External Action Service (EU) assists the High Representative of the Union for Foreign Affairs and Security Policy. Its Counter-Terrorism Division applies the 2005 EU Counter-Terrorism Strategy based on prevention, protection, pursuit and response and the updated Terrorism Action Plan, and promotes a criminal justice approach on counter-terrorism. EEAS coordinates Counter-Terrorism external outreach and capacity building assistance to third countries by EU and Member States. 

It was stressed to the Working Group that counter-terrorism as a matter of national security is essentially a Member State competence, with prosecution for related offences undertaken by Member State courts. The Working Group encourages greater harmonization of response among EU States on the foundation of human rights, to eliminate the creation of options for foreign fighters to move their activity to countries with lower standards. Moreover, it promotes the establishment of a common EU level approach for ensuring remedies to victims.

EEAS programming covers traveler analysis, a “check the web” internet content initiative, counter-terrorism dialogue in the international community targeting the Middle East and North Africa (MENA) region, technical assistance in MENA with focus on implementing UNSC Resolution 2178. Countering Violent Extremism is described as a priority addressing the cycle from radicalization to returnee rehabilitation.  An estimated 5 million euros is donated as grants for projects on returnees, strategic communications, notably in Arabic, as well as research and indicators. On strategic communications, EEAS also works with companies providing social media services.  It further works on financing for terrorism initiatives.

Despite the existence of human rights counter-terrorism guidelines, and the assertion of the application of the EU’s Charter of Fundamental Rights, the Working Group emphasizes that human rights should be mainstreamed into EU approaches and activities, including on how UNSC Resolution 2178 is promoted to third countries. It welcomes efforts to better understand the foreign fighter phenomenon, including research on motivating factors and the development of indicators.  It further supports information gathering, notably for registration in databases, as well as information sharing across departments, agencies and Member States.

The Working Group believes that recent events have brought the EU to an important juncture in its approach to security and defense. This approach must be firmly anchored in the foundation of human rights and democracy which it so fundamentally enshrines and promotes.

Private military and security companies

The Working Group has, since its establishment in 2005, been mandated to monitor and study the effects on the enjoyment of human rights, particularly the right of peoples to self-determination, of the activities of private companies offering military assistance, consultancy and security services on the international market (HRC Res 2005/2).  Most recently, Human Rights Council Resolution 30/6 requests the Working Group to continue to monitor mercenaries and mercenary-related activities in all their forms and manifestations, as well as private military and security companies (PMSCs), in different parts of the world.

Both the 2015 Human Rights Council and the 2015 General Assembly Resolution further request the Working Group to consult States, intergovernmental and non-governmental organizations and other relevant actors of civil society in the implementation of the resolutions, and to report.  The Resolutions also recommend that all Member States, including those confronted with the phenomenon of PMSCs, as contracting States, States of operations, home States or States whose nationals are employed to work for a private military or security company, contribute to the work of the open -ended intergovernmental working group, taking into account the work done by the Working Group.

The EU employs private security companies in both its civilian and police missions and its military operations. Civilian missions having used PSCs, largely for protecting their premises and/or as bodyguards, include the European Union Rule of Law Mission in Kosovo, the EUPM in Bosnia-Herzegovina, the EUPOL mission in the Palestinian Territories, and the EUPOL mission in the DR Congo. 

Private contractors have supplied a wide variety of services to support EU military operations with justifications including troop limitations, lack of specific capabilities, financial constraints and development objectives.  These operations include CONCORDI in the Former Republic of Macedonia, ARTEMIS in the Democratic Republic of Congo, EUFOR ALTHEA in Bosnia-Herzegovina, EUFOR in the Democratic Republic of Congo, EUNAVFOR ATLANTA in the Gulf of Aden, EUFOR in Chad/Central African Republic, EUTM in Somalia, EUTM in Mali, and EUNAVFOR MED in the Mediterranean.  In most cases, military support services are contracted by the individual member states involved in the military operations, each of which supplies its specific national legislation. Services provided encompass, for example, private guarding of installations and personnel, provision of helicopters, logistical support, maintenance and translation.

The Working Group again notes its concern that the different standards in national legislation and policies on PSC use makes for patchy and inconsistent regulation at the EU level.  It urges harmonization of regulation to ensure even standards across the region, and to move towards predictable accountability for human rights violations.

In July 2012, the EU, as an international organisation, joined the Montreux Document and 23 EU member states support the Montreux Document. The Montreux Document on Pertinent International Legal Obligations and Good Practices for States related to Operations of Private Military and Security Companies during armed conflict.  Non-binding document includes two parts. Part one reiterates the obligations of states and PMSCs under international law, and outlines a wide range of ‘good practices’ for contracting states regarding the hire, use and oversight of PSCs. Part two proposes a voluntary code of conduct for PMSCs. During the 2014 Constitutional Meeting of the Montreux Document Forum, the European Union, as an international organisation, was elected to become a member of the Group of Friends of the Chair.

The key approach to regulation within the EU is reportedly through procurement procedures which involve the blacklisting of companies whose records do not meet EU stipulations.  The Working Group was advised that the EU relies on civil society input to the development of the blacklist, notably conveying any allegations or legal proceedings about PMSCs or their personnel.  The Working Group urges greater awareness raising by the EU about this platform and its related processes, and encourages civil society actors to actively participate.

The European Court of Justice has established the competence of the EU Commission over PSCs in several rulings which identify private security services as an “economic sector”, included under first pillar.

The EU Council decided in 2006 to exclude private security services from the directive on services in the internal market. The Working Group learned that this decision was taken upon the request of representatives of the private security industry who argued that it would not support their business.  As such, the sector remains unregulated in the EU market. The Commission was tasked instead with assessing the possibility of presenting a separate proposal for the harmonization of regulations concerning private security services by 28 December 2010.

The European Parliament has been in favour of harmonizing member states’ regulations of the private security sector, and the Council adopted on 13 June 2002 a recommendation regarding cooperation between the competent national authorities of member states responsible for the private security sector. In 2011, its Directorate General for External Policies published a report “The role of PSCs in CSDP missions and operations”, which urged the development of appropriate mechanisms to address the possible problems of PSC use before they occur, such as decreased democratic accountability and governmental control to the perceptions of contractor impunity and insecurity among the civilian populations of host states. They further recommended the creation of a Common list of military and security services; Common guidelines for the hire, use and management of military and security contractors in CSDP operations; A Directive (Internal Market) setting minimum standards for private security service providers within the EU; a Council Decision (CFSP), regulating the export of private military and security services, as defined in the Common Service List, to destinations outside the EU; and  Council Decisions (CFSP) including military and security services into EU embargoes.  There has not been action on any of these recommendations.

In December 2015 the European Parliament convened a public hearing in Brussels on "The use of Private Security Companies in the context of European security and defence" organized by the European Parliament Committee on Foreign Affairs, Subcommittee on Security and Defence.  The Working Group supports EU public dialogue on the activities of private military and security companies, and notably regarding their impact on human rights.

The Working Group learned during its visit that the European Parliament Sub-Committee on Security and Defence is preparing an initiative report on EU regulation of PMSCs for possible consideration by parliament. It urges the relevant parties to ensure that the process brings about active discussion and informed decision-making on the issue.

The Working Group was also apprised of both political and procedural challenges to the development of EU level regulation of private military and security companies.  While changing the services directive may be onerous and time-consuming, there seems to be some early momentum towards deliberation of an EU level approach. Member State concerns regarding state monopoly on the use of force, on economic consequences, or otherwise, need to be openly aired and robustly addressed in EU institutions, by the European parliament and/or the European Commission and/or the European External Action Service.  Such efforts should draw upon all sources of relevant research, evidence and information, providing arguments and counter-arguments for all options, and in different progressions, including voluntary regulation, model laws, expanded jurisdictions and a global convention for universal application, and examining national, regional and international approaches. Ultimate consideration for accountability and for the protection of victims and potential victims of human rights by private  military and security companies should guide decision-making in this regard.

The growing consideration of the role of PMSCs in EU activity should prompt key EU actors to seize the opportunity for advancement on an issue that, while silently expanding and with profound implications for human rights protection within and outside the EU, remains largely unexplored and unaddressed.

Court of Justice of the EU, Case Law, Rulings C-114/97 (vs. Spain), C-355/98 (vs. Belgium), C-283/99 (vs. Italy), and C-189/03 (vs. Netherlands)