3 August 2009
WASHINGTON DC - The UN Working Group on the use of mercenaries concluded its official two-weeks visit to the United States of America on 3 August 2009. The Working Group was represented by its Chairperson-Rapporteur Shaista Shameem and Jose-Luis Gomez del Prado, member of the Working Group. It held discussions in Washington DC and New York City and met with senior officials from the US Government, Congresswoman Jan Schakowski and senior staff of other members of Congress or Committees, representatives of civil society organizations and academics, the US trade association of Private Military and Security Companies (PMSCs) as well as some of its members.
The Working Group is grateful to the U.S. Government for its cooperation and for having facilitated meetings with officials from the Departments of State, Defense, Justice, and Labour. The US Government's willingness to invite the UN Working Group and to engage in a constructive dialogue on the oversight and accountability of PMSCs sends an important message. The Working Group also took the opportunity of its visit to remind the State department of pending allegation letters, including for follow up information on the Nisour square incident in Baghdad as well as on the case of Mr. Posada Carriles, allegedly involved in mercenaries activities in the Americas in the eighties and residing in the US.
The Working Group has been increasingly focusing on the impact of the activities of PMSCs on the enjoyment of human rights. Violations of human rights committed by private security contractors may include excessive use of force which could lead to injuries or death and which, prior to January 2009, were often not adequately investigated and prosecuted by the relevant authorities. The Working Group received reports of abuses by PMSCs in Iraq and Afghanistan, including the use of contractors for the interrogation of detainees in US custody. The Working Group also collected worrying information on the possible use of a private military and security company in rendition flights.
In the last few years and especially following the Nisour Square massacre of 16 September 2007 in Baghdad, the US Congress repeatedly expressed its concern at the lack of proper regulations for the oversight of PMSCs. The Working Group is pleased that the US government has since taken serious corrective actions and welcomes recent adoption by the US authorities of legislations and regulations aimed at strengthening further the oversight and accountability of PMSCs such as Section 862 of the National Defense Authorization Act (28 January 2008) and the Department of Defense “Interim Finale Rule” (17 July 2009).
Moreover, the Working Group is encouraged by recent initiatives of the Congress to adopt legislation to further improve the transparency, accountability, information-sharing and coordination among the contractors and the military. The Congress should pursue its efforts to adopt legislation that comprehensively provides criminal jurisdiction over contractors and civilian employees.
Although the US authorities have put in place mechanisms to better monitor PMSCs, there is still very little information accessible to the public on the scope and type of contracts. The lack of transparency is particularly significant when companies subcontract to others. The Working Group would like to reiterate that the responsibility of the State to protect human rights does not stop with contracting or subcontracting. It is indeed the responsibility of the State to ensure that any contractor to which it outsources its functions, fully respects human rights, and, in cases of violations is prosecuted and held accountable.
The Working Group is greatly concerned that PSMCs contracted by US Intelligence agencies are not subject to public scrutiny due to classified information. The Working Group believes the public should have the right to access information on the scope, type and value of those contracts. The Working Group hopes that the US Government will take the necessary steps to remove all obstacles to transparency and accountability on the intelligence activities contracted to PMSCs in order to ensure full respect for and protection of human rights and prevent any situation that may lead to impunity of contractors for violations of human rights.
The Department of Justice has a key role to play to ensure application of the stated commitment of the US government that criminal offenses and violations of human rights will not remain unpunished, and the fulfillment of the US government’s legal obligations under several international human rights treaties. To date, 17 cases involving a range of contractors in several countries and broad range of crimes were formally launched by the Justice Department. The Working Group was informed that at least 7 convictions were pronounced. The Working Group calls on US prosecutors to play a more proactive role in investigating and prosecuting allegations of human rights violations.
The Working Group is concerned by the stated US policy intention to increase the number of private security contractors to match the surge in troops in Afghanistan. “We are particularly preoccupied that the use of PMSCs to protect US forward operating bases in most places in Afghanistan may further dilute the distinction between military and civilian personnel, an obligation under international humanitarian law. We are also alarmed by the trend towards an extensive privatization of the war. The Working Group received assurances from the US Government that it is not and does not intend to relinquish its State monopoly of the legitimate use of force”, said Shameem.
The Working Group is also concerned by the recent objection expressed by the Administration to a prohibition in the 2010 defense funding bill of the use of contractor personnel from interrogating persons detained during or in the aftermath of hostilities. “In light of the alleged involvement of PMSCs in the ill-treatment of detainees in US custody, the Working Group calls on the US Government to reconsider its initial position.”
Finally, the WG believes that in addition to national regulation, an international instrument establishing an international oversight and monitoring mechanism is necessary and calls upon the US authorities to engage constructively in the international process towards the elaboration of a possible new international convention to achieve an international framework regulating the use of private contractor for security functions. In this regard, the Working Group was informed that a number of members of Congress introduced a draft bill which “directs the Secretary of State to work on existing or new international fora to achieve an international framework regulating the use of private contractors for security functions”.
Congress should adopt legislation that comprehensively provides criminal jurisdiction over contractors and civilian employees, including those working for the intelligence agencies and ensure its effective implementation;
The Department of Justice (DOJ) should ensure prompt and effective investigation of any allegations of human rights violations committed by PMSCs and prosecute alleged perpetrators. For that purpose, the DOJ should strengthen its investigative resource capacity and appoint an independent prosecutor;
When contracting and sub-contracting, the US Government should ensure victims’ right to an effective remedy and ensure that victims have access to justice; the right to remedy should also include access to a fair administrative process to claim compensations;
DOJ should promptly make public statistical information on the status of these cases, disaggregated by the type, year, and country of alleged offence; investigations launched, prosecutions and penalties;
The US Government and Congress should press for further transparency and freedom of information and reduce the application of classified information as well as State secret privileges in court, in particular regarding alleged human rights violations involving PMSCs;
The US Government should make available to the public specific information on the number of PMSCs operating under US contracts, the names of the companies, the number of personnel, weapons and vehicles as well as the activities for which they were contracted, within legitimate limitations such as national security and privacy;
The US Government should regularly release statistics on the number of private military and security contractors injured or killed while supporting US operations;
The US Government should consider establishing a specific system of federal licensing of PMSCs and especially of their contracts for operations abroad. Such licensing should include obligatory training of personnel on norms of international humanitarian and human rights law, and require the verified absence of national and international criminal record among PMSCs employees;
The US Government should put in place a vetting procedure before awarding contracts. This would require an assessment of past performance, including steps taken to provide remedy, compensation to victims for past abuses and prevent further abuses. Otherwise, suspended or convicted companies and employees involved in human rights abuses should be banned;
Congress should launch an investigation on the use of PMSCs on rendition flights.
The Working Group is composed of five independent experts serving in their personal capacities, and headed by its Chairperson-Rapporteur, Shaista Shameem (Fiji). The other Working Group experts are: Najat al-Hajjaji (Libyan Arab Jamahiriya), Amada Benavides de Pérez (Colombia), José Luis Gómez del Prado (Spain), and Alexander Nikitin (Russian Federation).. For more information on the Working Group’s mandate, please visit: http://www2.ohchr.org/english/issues/mercenaries/index.htm
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