5 February 2007
The Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination issued the following statement in Lima on 2 February:
“The Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination has concluded its visit to Peru, which took place from 29 January to 2 February 2007.
“The Working Group conveys its gratitude to the Government of Peru for the invitation extended to its members to visit the country and would also like to express its appreciation for the cooperative and constructive dialogue it has held with the legislative, executive and judicial authorities and other State organs. Over the course of the visit, the Working Group delegation met with Ministers, Deputy Ministers and senior officials at the Ministries of Foreign Affairs, Defence, the Interior and National Police, Justice and Labour; the chairpersons of the Justice and Human Rights Commission and the Labour Commission of the National Congress, the President of the Supreme Court of Justice, a Senior Prosecutor of the Higher National General Criminal Prosecutor’s Office of the Republic, the National Head of the Department of Forensic Medicine and representatives of the National Ombudsperson’s Office. The Working Group also met with other sectors of Peruvian civil society, including representatives of the Bar Association and a broad range of non-governmental organizations, private security companies, individuals and the media.
“During its visit to Peru, the Working Group collected information useful for the fulfilment of its mandate, which is to study and identify current manifestations and problems as well as emerging trends regarding mercenaries, mercenary-related activities and the role of private security and military companies and their possible impact on the enjoyment and exercise of human rights.
“In accordance with the usual practice of United Nations human rights special procedures, the Working Group will draw up a detailed report on its visit to Peru. This report will be submitted to the United Nations Human Rights Council and reflected in the report addressed this year to the General Assembly.
“On this last day of its mission to Peru, the Working Group wishes to provide some preliminary conclusions and comments on its visit.
“As a general principle, the Working Group wishes to stress the primary responsibility of Governments under international and domestic law for maintaining public security and law and order.
“The Working Group congratulates the Peruvian State on its action with a view to acceding to the 1989 International Convention against the recruitment, use, financing and training of mercenaries. Peru will thus become the fifth country in Latin America and the Caribbean and the twenty-ninth in the world to become a party to the Convention. At the national level, this needs to be supplemented with measures to adapt Peruvian legislation in order for mercenary-related activities and mercenarism to be criminalized and sanctioned. These measures will enable Peru to fill a legal vacuum. The Working Group also noted the enactment in 2006 of Law 28879 on Private Security Services, for which implementing regulations are being prepared; General Law 28806 on Labour Inspection; as well as Law 28950 against Trafficking in Persons and the Illicit Smuggling of Migrants, adopted on 12 January 2007.
“The Working Group expresses its concern at reports concerning the recruitment and training of hundreds of Peruvians by private security companies to perform security functions in Iraq and Afghanistan. Some of these companies are registered in Peru as subsidiaries of companies based abroad while others have operated without being registered. The Working Group has also received information from various sources concerning contractual irregularities, poor working conditions, including overcrowding, excessive working hours, partial or non-payment of salaries, ill-treatment and isolation, and neglect of basic needs such as health and hygiene. Although contracted as security guards, they received military training in Peru or a Middle Eastern country and ended up performing functions not specified in their contracts and therefore not the subject of an agreement.
“The Working Group received information from the Ministry of Defence to the effect that, on 19 September 2005, the Secretary-General of the Army General Command authorized the General Manager of the Army Arms and Ammunition Factory (FAME) to conclude a contract with the company Gun Supply SAC. Following an investigation, the Ministry of Defence found that the Army had not duly evaluated the political and international implications of the issue when approving the proposal, which had not been communicated to the Ministries of Defence or Foreign Affairs. The Ministry of Defence reaffirmed its commitment to cooperate with the Working Group and assured it that this sort of situation would not occur in the future.
“The Working Group has observed that weak or insufficient national legislation, regulation and control of private security companies encourages companies operating in the international market to seek to recruit individuals from other countries as security guards in areas of armed conflict. It has, therefore, urged States to strengthen domestic legislation against these new forms of mercenarism-related crime. It would appear that the absence of measures to control private security companies has enabled the recruitment of large numbers of Peruvians. According to some sources, more than one thousand Peruvians are still providing such services in Iraq. In this connection, the Working Group takes note of the positive steps taken by the Foreign Ministry’s Department for Peruvian Communities Abroad in an endeavour to remedy problems arising from this recruitment and urges it to pursue more vigorous action in this regard.
“The information received demonstrates serious omissions and shortcomings in complying with obligations under international law, including labour standards, and calls into question the constitutionality of these activities. The unfavourable socio-economic situation and high unemployment which have made this sort of contract attractive in no way diminish the Government’s responsibility. The Working Group is concerned at the failure to act of State bodies, especially the Ministry of Labour and the National Prosecutor’s Office, since this is a massive phenomenon which is common knowledge and widely reported in the media. The Ministry of Labour should at some stage have monitored the contracts to ensure that possible claims for breach of labour rights were admissible; have issued an opinion on the provisions and conditions of the contracts; and as far as possible have tried to frame the contracts under a bilateral agreement guaranteeing health services, social security and labour rights for all employees.
“The Working Group is aware that the ways in which some private security companies recruit people in countries with high unemployment to provide security services in areas of armed conflict constitute new forms of mercenarism. Although this new development may initially have come as a surprise to the authorities of the countries concerned, the Working Group notes that Mr. Enrique Bernales Ballesteros, the former United Nations Special Rapporteur on the use of mercenaries, and United Nations General Assembly have repeatedly drawn the attention of Member States to the fact that, “notwithstanding the way in which they are used or the form that they take to acquire some semblance of legitimacy, mercenaries or mercenary-related activities are a threat to peace, security and the self-determination of peoples and an obstacle to the enjoyment of all human rights by peoples”. The Working Group notes the positive role of the media in alerting the public about situations of recruitments to work in conflict situations from the very outset.
“In addition, the Working Group has during its visit received allegations that private security groups or police officers engaged in private security work are involved in a series of actions by to intimidate the population, and in particular environmental rights defenders in the Cajamarca region. These include the deaths of several local individuals and infringements of personal freedom in the form of pressure on environmental organizations. The Working Group is concerned that legitimate social protest by communities about use of their lands is portrayed as criminal or terrorist activity and that leaders of such protests are eliminated, accused or intimidated by the use of force. In this connection, the Working Group urges Government agencies to continue to provide these leaders with the precautionary protection measures demanded by the Inter-American Commission on Human Rights.
“In light of the above, the Working Group wishes to present the following preliminary recommendations:
- That Peru’s instrument of accession to the 1989 International Convention against the recruitment, use, financing and training of mercenaries be deposited as soon as possible;
- That, in the process of bringing Peru’s legislation into line with the International Convention, Peru should adopt the broadest possible legal interpretation, to cover not only the traditional offence of acting as a mercenary but also mercenary-related activities. It would therefore be important to involve in the drafting process the various Ministries and Government bodies concerned, as well as the Ombudsperson’s Office and sectors of civil society working to protect human rights;
- That the authorities maintain transparent registers of private security companies, including all matters concerning ownership, statutes, purposes and functions as well as a system of regular inspections. The authorities should also adopt legislation and regulations to avoid possible conflicts of interest when serving State officials act as owners or managers of these companies;
- That the competent authorities, and in particular the National Prosecutor’s Office, should investigate all cases which have not been duly resolved, especially the deaths of Peruvians in the course of their activities in Iraq and Afghanistan;
- That the competent authorities promptly provide the information requested of them by the oversight bodies charged with investigations to determine the respective responsibilities of the State and the private security companies and individuals concerned, bearing in mind possible issues of extraterritorial jurisdiction;
- That urgent measures be taken to protect the rights of Peruvians still employed in Iraq and Afghanistan under the aforementioned conditions.”
The Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination was established in 2005 by the Commission on Human Rights. The Working Group comprises five independent experts serving in their personal capacities: Ms. Najat al-Hajjaji (Libyan Arab Jamahiriya), Chairperson-Rapporteur Ms. Amada Benavides de Pérez (Colombia), Mr. José Luis Gomez del Prado (Spain), Mr. Alexander Nikitin (Russian Federation) and Ms. Shaista Shameem (Fiji).
For further information on the resolution establishing the mandate of the Working Group, please consult the website of the Office of the United Nations High Commissioner for Human Rights, http://www.ohchr.org/english/issues/mercenaries/index.htm