UN human rights experts encouraged by US government efforts to increase accountability of private security contractors but concerned by lack of effective remedy for victims of human rights violations
04 August 2009
Geneva, 4 August 2009
The United Nations Working Group on the use of mercenaries expressed concern at the trend towards extensive privatization of the war in Afghanistan, at the end of an official two-week visit to the United States on 3 August.
Expressing concern over the stated US intention to increase the number of private security contractors to match the surge in troops in Afghanistan, the leader of the Working Group delegation, Ms. Shaista Shameem said, “We are particularly alarmed that the use of private military and security companies 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.”
The Working Group, which met with senior officials in the US government, staff of members of Congress, representatives of civil society, academics and members of the private military and security companies’ trade organization, among other people, also expressed concern at the recent objection expressed by the Obama 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 private military and security companies in the ill-treatment of detainees in US custody, the Working Group calls on the US Government to reconsider its initial position,” Shameem said.
Violations of human rights committed by private security contractors, the Working Group noted, may include excessive use of force which could lead to injuries or death and which often are not adequately investigated and prosecuted by the relevant authorities. The Working Group received reports of such abuses in Iraq and Afghanistan, including the use of contractors for the interrogation of detainees in US custody. The Working Group also collected information on the possible use of a private military and security company in rendition flights
Following the Nissour Square killings of 16 September 2007 in Baghdad where Blackwater guards shot 17 Iraqi civilians, the US Congress repeatedly expressed its concern at the lack of proper oversight of private military and security contractors. The Working Group noted that the US government has since taken serious corrective action including adoption of legislation and regulations aimed at strengthening the oversight and accountability of private military and security contractors.
Congress should pursue its efforts to adopt legislation that comprehensively provides criminal jurisdiction over contractors and civilian employees, the Working Group said. 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 a broad range of crimes had been formally launched by the Justice Department. The Working Group was informed that some 7 convictions had been obtained. However, the Working Group called on US prosecutors to play a more proactive role in investigating and prosecuting allegations of human rights violations.
The Working Group noted that there is still very little information accessible to the public on the scope and type of contracts. This lack of transparency is particularly significant when companies subcontract to others. The responsibility of the State to protect human rights does not stop with contracting or subcontracting, the Working Group emphasized. It is 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.
Expressing great concern over the fact that private military and security companies contracted by US Intelligence agencies are not subject to public scrutiny due to classified information, the Working Group stated that the public should have the right to access information on the scope, type and value of those contracts. The US Government should take the necessary steps to remove all obstacles to transparency and accountability on the intelligence activities contracted to private military and security companies in order to ensure full respect for and protection of human rights and to prevent any situation that may lead to impunity of contractors for violations of human rights.
In addition to national regulation, an international instrument establishing international oversight and monitoring is necessary in the view of the Working Group. It called upon the US authorities to engage constructively in the international process towards the elaboration of a possible new treaty to achieve an international framework regulating the use of private contractors 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”.
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) who was also part of the US visit, and Alexander Nikitin (Russian Federation).