A PYRRHIC VICTORY AT THE UNITED NATIONS OVER THE 21st CENTURY’S ¨PRIVATEER INDUSTRY” ?

Jose L. Gomez del Prado

Member

UN Working Group on mercenaries

For the last two decades Cuba has been at the forefront in the United Nations Human Rights Council on the issue of mercenaries and the activities of private companies offering military assistance, consultancy and other military security-related services on the international market. And it has been the main sponsor of the resolutions adopted on mercenaries in the world organization.

The position of Western governments has been a rejection of the Cuban motions by voting against the establishment, mandate and recommendations of the UN Working on mercenaries. Member States of the Western Group, and principally the United Kingdom and United States of America where approximately 70% of the private military and security companies (PMSC) are located, have discredited the resolutions presented by Cuba on the basis that these private contractors are not mercenaries but employees of commercial entities legally registered fulfilling contracts outsourced by governments, mainly of the United States, multinational companies, intergovernmental and non-governmental organizations providing such activities as training, intelligence and passive security. In addition, the UN Human Rights Council they claim is not the appropriate forum to discuss such issues since it is not a “primarily” human rights issue.

However, since 2001 the use of these private contractors to support operations in Iraq and Afghanistan, and the human rights violations in which they have been involved has been the focus of international attention. It has generated debate about the type of functions PMSCs should fulfill, the norms under which they should operate and how to monitor their activities.

To respond partly to these concerns the two governments where most of the security industry is located, UK and USA, with the government of Switzerland, the International Committee of the Red Cross and the two main associations of the security industry, the International Peace Organization Association (IPOA) - for the United States - and the British Association of Private Security Companies (BAPSC) – for the United Kingdom – launched the Swiss Initiative, which led in 2009 to the adoption of the Montreux Document. It reiterates the norms of International Humanitarian and Human Rights Law and sets out a series of good practices to be followed on a voluntary basis by PMSC. However, these excellent examples cannot be left to self-regulation if they are meant for something else than window dressing: an enforcing mechanism is necessary.

Left to self-regulation by the security industry, the good practices contained in the Montreux document appear more as a public relations operation for PMSC continue to fail to apply them. The human rights violations committed in the Iraqi prison of Abou Ghraib, the summary executions perpetrated at Nissour Square in Baghdad as well as the lack of vetting procedures in cases such as that of former soldier Danny Fitzsimons, who had been diagnosed as suffering from Post-Traumatic Stress Disorder (PTSD) in January 2004, May 2008 and June 2009 but was hired by ArmorGroup, sent out to Iraq without undergoing a full medical assessment and 36 hours of his arrival killed two colleagues and injured an Iraqi may suffice to demonstrate that the activities of these guns for hire must be regulated and monitored.

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.

For the first time, a different resolution dissociating the activities of PMSC from the traditional resolution on mercenaries was tabled this year at the UN Human Rights Council in Geneva. The main mover of this resolution has been South Africa, a country that has been compelled to repatriate the corpses of 40 South African private guards contracted by PMSC operating in Iraq. The resolution requests the establishment of an open-ended intergovernmental working group with the mandate to elaborate a legally binding instrument on the regulation, monitoring and oversight of the impact of the activities of private military and security companies on the enjoyment of human rights, on the basis of the principles, main elements and the draft text for a possible convention proposed by the UN Working Group on the use of mercenaries.

The motion to create an open ended intergovernmental working group has been the object of lengthy negotiations 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 has been adopted by a majority of 32 in favour, 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. In this connection it is worth mentioning that the regional consultation for Western States to be hosted in Madrid in October 2010 had to be cancelled due to negative messages and lack of interest showed by Western governments in participating.

The position of Western governments indicates their willingness to be absent from the start in a full in-depth discussion of the issues raised by the activities of PMSC. Without the participation of the UK and USA main exporters of these activities as well as other Western countries where the new industry is expanding the resolution passed in the Human Rights Council appears more like a pyrrhic victory unless the public opinion and civil society of Western countries bring enough pressure to bear on their respective governments.

1