CONSEIL DES DROITS DE L’HOMME Dixième session Point 3 de l’ordre du jour
PROMOTION ET PROTECTION DE TOUS LES DROITS DE L’HOMME, CIVILS, POLITIQUES, ÉCONOMIQUES, SOCIAUX ET CULTURELS, Y COMPRIS LE DROIT AU DÉVELOPPEMENT
Rapport du Groupe de travail sur l’utilisation de mercenaires comme moyen de violer les droits de l’homme et d’empêcher l’exercice du droit des peuples à disposer d’eux‑mêmes*
Président‑Rapporteur: M. Alexander Nikitin
Additif
MISSION AU ROYAUME‑UNI DE GRANDE‑BRETAGNE ET D’IRLANDE DU NORD** (26‑30 mai 2008)
Résumé
À l’invitation du Gouvernement du Royaume-Uni de Grande‑Bretagne et d’Irlande du Nord, le Groupe de travail sur l’utilisation de mercenaires comme moyen de violer les droits de l’homme et d’empêcher l’exercice du droit des peuples à disposer d’eux‑mêmes a effectué une mission au Royaume-Uni du 26 au 30 mai 2008. Le Groupe de travail s’est félicité de l’occasion qui lui était donnée d’engager avec le Gouvernement et d’autres parties prenantes un dialogue constructif sur des questions relevant de son mandat.
Le Groupe de travail note que, bien que le Gouvernement du Royaume-Uni ne dispose pas d’archives concernant les sociétés privées de prestation de services militaires et de sécurité, des estimations générales fournies par le secteur concerné et des experts indiquent qu’une quarantaine de sociétés de ce type sont basées au Royaume-Uni et mènent des activités au niveau international. Selon les estimations, les revenus des sociétés privées de prestation de services militaires et de sécurité britanniques sont passés de 320 millions de dollars des États‑Unis avant la guerre en Iraq à plus de 1,6 milliard de dollars des États‑Unis en mars 2004.
Le Groupe de travail note en outre que le Royaume-Uni n’est pas partie à la Convention internationale contre le recrutement, l’utilisation, le financement et l’instruction de mercenaires. Il constate que le Royaume-Uni a participé à l’initiative suisse, y compris à l’élaboration du document de Montreux. Le Groupe de travail estime que c’est aux autorités nationales qu’il appartient principalement de garantir la sécurité et l’ordre publics dans l’État, conformément au droit international et national.
Le Groupe de travail reconnaît que l’élaboration et la diffusion du Livre vert du Royaume‑Uni, qui présentait dans les grandes lignes six options en matière de réglementation des sociétés privées de prestation de services militaires et de sécurité opérant en dehors du Royaume-Uni, ont constitué une étape importante et positive vers un contrôle plus strict des sociétés privées de prestation de services militaires et de sécurité. Il note toutefois avec préoccupation que le Gouvernement n’a pas donné suite à ces options.
Le Groupe de travail recommande de rendre publics les résultats de l’examen, effectué en 2005, du Livre vert du Royaume-Uni sur la réglementation des sociétés privées de prestation de services militaires et de sécurité, ou de procéder à un nouvel examen, et de tenir des discussions de fond avec les organes concernés sur les options en matière de réglementation, y compris la répartition possible des responsabilités et des tâches entre les mécanismes nationaux et internationaux de réglementation et de sanction. Le Groupe de travail estime en outre qu’un ensemble de principes de base, exposés dans le rapport, peuvent être mis en place au niveau national afin d’offrir un cadre et des mécanismes visant à régir les activités des sociétés privées de prestation de services militaires et de sécurité.
Enfin, le Groupe spécial recommande au Royaume‑Uni d’engager et de financer, dans le cadre du système des Nations Unies, l’élaboration et l’adoption d’un instrument international relatif aux sociétés privées de prestation de services militaires et de sécurité afin de compléter les réglementations nationales, de définir des critères précis et des limites admises pour le bon fonctionnement du secteur, de faire en sorte que les sociétés privées respectent pleinement les dispositions du droit international, en particulier du droit humanitaire, et de garantir l’exercice des droits de l’homme universellement admis.
Annexe
MISSION TO THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND (26-30 May 2008)
CONTENTS
Paragraphs Page
Introduction ..................................................................................................... 1 - 3 4
I. GENERAL OBSERVATIONS ........................................................... 4 - 12 4
A. Background .................................................................................. 4 - 5 4
B. Private military and security companies in the United Kingdom ........................................................................... 6 - 12 5
II. POLITICAL STRATEGY AND LEGAL AND INSTITUTIONAL FRAMEWORK ................................................... 13 - 23 6
A. International level .......................................................................... 13 - 16 6
B. National level ................................................................................ 17 - 23 7
III. NON-SYSTEMATIC CHARACTER OF OVERSIGHT OVER THE ACTIVITIES OF PRIVATE MILITARY AND SECURITY COMPANIES ....................................................... 24 - 33 8
IV. CONCLUSIONS AND RECOMMENDATIONS ............................ 34 - 48 10
Introduction
1. At the invitation of the Government of the United Kingdom of Great Britain and Northern Ireland, the Working Group visited the United Kingdom from 26 to 30 May 2008. The Working Group delegation was composed of its Chairperson-Rapporteur, Mr. Alexander Nikitin, and one of its members, Mr. José Luis Gomez del Prado. The Working Group is grateful to the Government of the United Kingdom for its invitation. The Working Group had excellent cooperation with the United Kingdom authorities throughout the planning and conduct of its visit.
2. Part of the mandate of the Working Group is to examine the situation regarding the activities of private military and private security companies (PMSCs) on the international market and its effects on the enjoyment of human rights. The purpose of the visit of the Working Group to the United Kingdom was to examine current issues and trends regarding the regulation of activities of private military security companies. Therefore, two areas were of particular interest to the Working Group in the United Kingdom: (i) status and regulation of PMSCs in the United Kingdom, and national legislation and protection measures, including permits and licensing; (ii) basic principles for national regulation of the activities of PMSCs.
3. During its visit, the Working Group delegation held meetings with the Foreign and Commonwealth Office (FCO) Minister for Africa, Asia and the United Nations, the FCO Conflict Group, the Ministry of Defence, the Better Regulation Executive, attached to the Department for Business, Enterprise and Regulatory Reform (BERR) and the Department for International Development. The Working Group also held consultations with the representatives of the civil society, NGOs and academics, and representatives of private military security companies.
I. GENERAL OBSERVATIONS
A. Background
4. The mandate of the Working Group was established in 2005 and builds on the work of the former mandate of the Special Rapporteur on the use of mercenaries as a means of violating human rights and impeding the exercise of the rights of peoples to self-determination.[1]With the creation of the Working Group, the mandate was widened to include monitoring of PMSCs and the impact of their activities on all human rights.
5. The Working Group considers that State authorities have the primary responsibility in maintaining public security and law and order in the State, under international and domestic law. Noting the trends of privatization of security and the use of force, the Working Group is concerned that some PMSCs are committing human rights violations with impunity whilst operating in armed conflicts and other situations.
B. Private military and security companies in the United Kingdom
6. Though the first British PMSCs were registered in 1967, the United Kingdom developed a private defence industry mainly in the mid-1980s. The Government began with the privatization of the national armaments industry, and then further advanced the use of private companies with the outsourcing of a growing range of military services. Up to 80 per cent of all private military and security companies worldwide are said to be registered in the United Kingdom and the United States.[2]Though the United Kingdom Government does not have any register for the PMSCs, the general estimate shared by industry and experts is that there are about 40 United Kingdom-based large PMSCs in the industry which operate internationally. Of them, 21 companies are permanent or provisional members of the British Association for Private Security Companies, and only 4 or 5 companies are regularly contracted by the United Kingdom Government. Others are contracted by foreign government agencies (the Governments contracting British companies include the United States, the United Arab Emirates, Saudi Arabia, Algeria, Nigeria, and other countries), and sometimes by international organizations (including the United Nations), as well as by non-governmental contractors in the business sector.
7. The revenues of British PMSCs are estimated to have risen from US$ 320 million before the war in Iraq to over US$ 1.6 billion by March 2004.[3]The United Kingdom employed around 1,500 civilian contractors during the Iraq campaign in 2003, mainly to provide equipment and technical support.
8. There are three types of ownership among the British PMSCs: (a) companies privately owned by individuals; (b) companies registered and quoted in stock exchange; (c) companies largely owned by employees through a system of shares (for example, Control Risks has 51 per cent of staff-owned shares).
9. Large United Kingdom PMSCs (like AEGIS which currently mostly works on contracts with the United States, or Control Risks which has large contracts with the United Kingdom Government in addition to 10 to 12 contracts with foreign Governments) have not only national headquarters, but also numerous branches and offices throughout the world. To estimate the size of operation, Control Risks has 620 permanent staff members and 700 to 900 consultants in 27 offices around the world, including Kabul, Jakarta, Moscow and Bogota, not counting hired operatives. Permanent staff of all internationally operating United Kingdom PMSCs was estimated by experts met by the Working Group at some 7,000 to 8,000. Moreover, the industry is intensively subcontracting former military, police and third country nationals.
10. Based on information provided by the FCO, the Working Group evaluates that as of the time of its visit, the United Kingdom Government has contracting obligations with about five companies to operate in conflict areas such as Iraq and Afghanistan.
11. The civil society and concerned NGOs[4] have identified and monitored a number of individuals and companies operating in this industry. In 2002, the head of a well-known British PMC estimated that there were probably only six private military companies operating out of the United Kingdom. Nowadays, this number has risen to above 40. According to an estimation by AEGIS, which is one of the largest contractors for the United States Department of Defense in Iraq, at the beginning of the reconstruction stage, up to 40 per cent of funds for reconstruction (and now still above 20 per cent) were designated for security tasks, most of which were performed by PMSCs.
12. The British Association of Private Military Security Companies (BAPSC) is a trade association of companies registered in the United Kingdom operating in the private security and private military services industry. The BAPSC evaluates its membership at 5 large companies as permanent members and 16 companies as provisional members. The provisional members have to go through a vetting process before becoming full members of the association. The BAPSC is performing the important task of self-regulation of the industry and is currently developing mandatory standards for its members. The Government is working with the BAPSC to encourage best practice and adherence to these standards.
II. POLITICAL STRATEGY AND LEGAL AND INSTITUTIONAL FRAMEWORK
A. International level
13. The United Kingdom is a party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Optional Protocol thereto, the International Covenant on Civil and Political Rights and its second Optional Protocol, the Convention on the Elimination of All Forms of Discrimination against Women and its Optional Protocol, the International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child and the Optional Protocol on the involvement of children in armed conflict.
14. The United Kingdom has signed but not ratified the Convention on the Rights of Persons with Disabilities and the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography.
15. At the regional level, the United Kingdom has ratified the European Convention on Human Rights and Fundamental Freedoms and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.
16. The United Kingdom is not a party to the International Convention against the Recruitment, Use, Financing and Training of Mercenaries, which has been ratified or acceded to by 30 States. While noting the limitations of this Convention, the Working Group promotes accession thereto as an important step towards addressing the concerns of mercenarism.
B. National level
17. The United Kingdom Export Control Act 2002 envisages controls for the provision of technical assistance abroad as well as for the brokering and trafficking of arms. This law replaces the Import, Export and Customs Powers (Defence) Act which was passed in the run-up to the Second World War in 1939 and seeks to bring current British legislation in line with requirements of the EU and international legislations. The Act implements the Statement of Principles on trafficking and brokering published in the Third Annual Review of the EU Code of Conduct on 11 December 2001, and the European Joint Action of 22 June 2000 on the provision of technical assistance. However, the Export Control Act does not explicitly concern itself with the regulation of the private military industry.
18. An important and positive step towards better oversight over PMSCs was the elaboration and spread of the United Kingdom Green Paper,[5] which outlined six options for the regulation of PMSCs operating out of the United Kingdom, its dependencies and the British Islands. The options are as follows:
1. A ban on military activity abroad;
2. A ban on recruitment for military activities abroad;
3. A licensing regime for military services;
4. Registration and notification;
5. A general license for PMCs/PSCs;
6. Self-regulation: a voluntary code of conduct.
19. The Green Paper does not only deal with options for regulation but also with the matter of the accountability of companies and employees: it states that the liability which international humanitarian law applies to soldiers committing war crimes would also “apply to employees of PMCs who became involved in armed conflict”. However, “a weak government which is dependent for its security on a PMC may be in a poor position to hold it accountable”.
20. As noticed by the NGO War on Want,[6] “six years later, the [United Kingdom] government has failed to take forward any of these options”.
21. During its meeting with the various stakeholders, the Working Group noted that there is a broad consensus on the general need for regulation, though through which specific mechanism is yet to be elaborated. In 2005, the Government conducted a review of the Green Paper. Although the review was apparently completed by mid-2005, it is not clear whether its findings were a subject of discussion within the ministries. Since then, the various options are being discussed within Government, albeit no timeline has been set up to come up with a decision.
22. On 24 January 2008, an early day motion[7] was signed by 82 members of the United Kingdom Parliament. It expresses the concern of the House of Commons about the “exponential growth of private military and security companies (PMSCs) since the invasion of Iraq”. The members of Parliament are “disturbed by the substantial rise of reported incidents of civilian killings and human rights abuses by PMSC guards in Iraq who remain unregulated and unaccountable”. The House notes that six years after the Green Paper that originated in a request from the Foreign Affairs Committee, “there is still no United Kingdom legislation regulating PMSCs”. The members of Parliament believe that “self-regulation by the industry is not appropriate in this instance” and urge “the Government to bring forward legislative proposals for the control of the PMSC sector as an urgent priority”.
23. The Foreign Affairs Select Committee was formed as the parliamentary body in charge of monitoring the progress made on legislation regarding the activities of PMSCs. It made some recommendations towards wider transparency and regulation of British PMSCs, but its powers are limited by the specificity of the British parliamentary system where it is the Government, and not the Parliament, which should initiate legislation and then push it through the House of Commons and the House of Lords. Amnesty International addressed the Select Committee with the request “to increase transparency and oversight over activities of private PMSCs” and promote legislation that will enable private military and security companies and their employees to be brought to justice in the United Kingdom for serious crimes committed abroad.
III. NON-SYSTEMATIC CHARACTER OF OVERSIGHT OVER THE ACTIVITIES OF PRIVATE MILITARY AND SECURITY COMPANIES
24. From the various meetings held during the visit to the United Kingdom, the Working Group has noticed British PMSCs in the field carry out a wide range of activities, going from conducting corporate investigations, security assessment or trainings, to hostage negotiations, and providing security in high-risk areas.
25. The British Government employs PMSCs outside of their territories only for certain types of activities which includes mobile and static guarding, mainly in Iraq and Afghanistan. For PMSCs employed by the British Government, there is a reasonably clear contracting system and the companies have to comply to some rule in order to be hired. All contracts go through the Foreign Commonwealth Office and are submitted to a bidding process like any other contract awarded by Government.
26. The companies have to fill a pre-qualifications questionnaire. The companies are chosen according to criteria determined by the procurement services of Government. These criteria usually focus on professional training of personnel and acquaintance of personnel with basic norms of law, including criminal, civil and international humanitarian law. In all contracts, there are clauses that allow for the termination of a contract if a human rights violation is proven. However, there is no formal system specifically for the review of contracts with private military and security companies. These contracts are subject to a general selection process, whereas the Working Group considers that the type of activities they cover, namely the use of force and the possession and use of weapons, requires specific supervision.
27. For the companies which are not hired by government bodies it is hard for the Government to exert any control. The industry of private military and private security services is not regulated in the United Kingdom, and therefore, there is no way of verifying their compliance with human rights standards if they are not hired by the British Government. It has been brought to the attention of the Working Group that in many cases, the companies do their own internal review to verify compliance with human rights standards.
28. The British Association of Private Military and Security Companies (BAPSC) does not have an ethics committee, but it has introduced a vetting mechanism and also developed draft mandatory standards for its members to follow. These standards refer to general principles of human rights.
29. The issue of extraterritoriality has been brought many times to the attention of the Working Group as one of the obstacles to regulation of activities of PMSCs. The British legal system is generally based on the principle of territoriality, and under United Kingdom law individuals generally cannot be prosecuted in the United Kingdom for crimes committed abroad.
30. There are however a few exceptions. For United Kingdom nationals, sexual offence crimes and murder and manslaughter could be tried in a British court of law. This would cover British employees of private military security companies incorporated in the United Kingdom; however a problem would still reside in the practicalities of bringing witnesses often residing abroad to a British court of law.
31. For other nationals, the British courts are only competent for all crimes of universal jurisdiction, such as genocide and crimes against humanity. Therefore, third country nationals - i.e. nationals of neither the country where the crime took place nor the United Kingdom - cannot be prosecuted in a British court for criminal offences committed overseas, such as indiscriminate shooting, arbitrary detention, etc.
32. As regards individuals employed by a British PMSC contracted by the British Government, they act and perform duties similar to State agents but cannot be held accountable for their action as the military can be, since civilians are not subjected to military law. One example was cited by the Ministry of Defence where in a certain site in Iraq, the PMSCs employed by the United Kingdom Government had signed a clause in their contract indicating that they were to be subjected to military law. However, this raises other human rights concerns as this would mean that civilians are tried in a military court of law.[8]
33. Outside the scope of military law, other industries dealing with the problem of extraterritoriality have proven that it is possible to enforce regulations. In the area of arms control, regulation comes from registering States. In the textile industry, the State where the company is incorporated can hold individuals accountable for human rights violations committed in States involved in the entire chain of supply. These few examples prove that there are credible ways to enforce a national regulation system that applies to a transnational industry.
IV. CONCLUSIONS AND RECOMMENDATIONS
34. Basic arguments raised against the regulation of PMSCs by various representatives of various Government agencies were limited to two groups: firstly, a general “methodological” objection to the accumulation of government regulations, especially if these regulations are hardly “enforceable”; and secondly, concerns regarding new costs and increased bureaucracy which might follow the establishment of any new regulatory system. It is important that neither of the arguments were specifically tailored for the regulation of PMSCs, but were of general nature.
35. At the same time, the size of the phenomenon in the United Kingdom and the number of cases requiring regulation occurred to be manageable: the development of a system of registration, or licensing, or even regular monitoring of about 40 large and a constellation of smaller companies does not present an irresolvable task for the governmental agencies of the United Kingdom, which have proven that they have the capacity in terms of size and experience to deal with much larger industries.
36. The Working Group regrets that a comprehensive discussion of the issue of regulation of the private military and security companies has only taken place in the United Kingdom to a limited extent, despite the publication of the Green Paper and expression of interest from Government, Parliament and civil society in the last decade. The general interest towards the issue has visibly decreased under the current Government. Basic decisions, even regarding choice between the options for regulation, let alone about implementation of any regulation, have not yet been taken.
37. The Working Group recommends to make public the results of the 2005 review of the United Kingdom Green Paper on the regulation of PMSCs, or to undertake a new review, and to conduct a comprehensive discussion between the concerned bodies (FCO, Ministry of Defence, the BERR agency within the Ministry of Industry, inter alia) of the options for regulation, including the potential sharing of responsibilities and functions between national (United Kingdom) and international (United Nations) levels of regulation and sanctions.
38. The Working Group believes that the problem lies in the common perception among United Kingdom authorities that the private military and security industry is similar to any other regular industry, which is perceived not through the prism of security, human rights and conflicts, but rather through the prism of “business as usual”. The Working Group strongly recommends to reassess this perception and pay due attention to the fact that the private military and security industry is a highly specific one, operating by definition in risky and dangerous areas and involved in conflicts; an industry possessing dangerous weapons and skills to employ them, and thus requiring advanced regulatory measures, and attentive and cautious public and political attitudes. The whole issue of PMSCs exporting services abroad should be reassessed, along with arms licensing and export control regulations, as far as, aside from exporting security and protection, this sector also exports deadly forces and skills, often into areas of open conflicts.
39. The Working Group believes that the whole system of monitoring and regulating PMSCs could be organized through the BERR (Department for Business, Enterprise and Regulatory Reform) along with export control regulations, though the actual design of the system would be decided by the Government at a later stage.
40. In general, in the course of meetings and discussions with various concerned governmental agencies, PMSCs themselves and concerned NGOs, the Working Group found that, with very few exceptions, a consensus exists on the main issue that the PMSC industry needs some regulation, and that even basic principles for such regulation as described below might be accepted, with minor variations, by all “stakeholders” (Government, Parliament, companies, international structures, concerned NGOs). Various groups of stakeholders are motivated by different factors. The large PMS companies themselves are supporting basic principles of regulation and are even experimenting with self-regulation because they are interested in more or less clear and publicly recognized criteria differentiating between “white”, “gray” and “black” businesses. Large PMSCs are sure that they would be able to meet licensing criteria, and some of them even hope to use regulatory mechanisms as a shield against smaller or not as well organized and connected business rivals. But whatever the motivations are, this creates a “window of acceptability” for the introduction of PMSCs regulation here and now.
41. Following meetings with various agencies and companies, the Working Group believes that a set of basic principles can be put in place at national level in the United Kingdom to provide some sort of regulatory framework and mechanisms for the activities of private military and security companies. The Working Group believes that these principles would meet the demands of the various actors involved. These principles could be summarized as follows:
· Specific and detailed registration of PMSCs is required, with possible prohibition of offshore registration of such companies
· Registration of PMSCs should be based on minimum transparency requirements, supposing regular (possibly annual) reporting of companies to the State bodies on main parameters of their foreign activities, change in structure, contracts over a certain size and other parameters to be defined by the State
· A specific system of State licensing of PMSCs and especially of their contracts for operation abroad might be established, similar to arms licensing or export control licensing
· Such licensing might presuppose requirements for 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
· Human rights abuses prevention criteria are to be built into general export criteria for the military and security services industry
· A State system of monitoring of activities and contracts of PMSCs might be established through a State inspectorate (possibly similar to BERR compliance officers), including investigations into reported cases of human rights violations committed by the companies or their employees
· In addition to a monitoring mechanism, a complaint mechanism open to individuals, State agencies, foreign Governments and other companies should also be put in place to ensure criminal responsibility of individuals and civil liability on companies
· The State must legally define the types of activities in the military and security area which under no circumstances could be outsourced to PMSCs, for example, access to weapons of mass destruction
· National legislation on PMSCs should clearly list types of activities prohibited for nationally registered PMSCs, including mercenary-related activities banned by the International Convention against the Recruitment, Use, Financing and Training of Mercenaries, or participation in overthrowing legitimate Governments and political authorities
42. To move towards the implementation of these principles, the Working Group recommends that the Government consider some concrete steps, listed below.
43. At present, there is no special registration system for private military security companies in the United Kingdom. The registration of PMSCs follows the same rules as the registration of any British company. It might be recommended to establish a distinct and open special register for PMSCs, which would contain the history record and general data of the companies and allow national and international authorities, as well as the British public, to look for information. Registration is important not per se, but as a tool to motivate companies to raise standards of professionalism, to use only legalized weapons and employ personnel without a criminal record, and to comply with international norms of human rights. The Government should possess full and relevant information on what, where and how British PMSCs are doing worldwide.
44. In addition to the specific detailed registration regime, a licensing system might be put in place to establish a permissive regime for foreign activities or contract. It is the FCO (in consultations with other government agencies, if required) or the Ministry of Defence (in consultation with the FCO, in the case of the Ministry of Defence contracting directly with companies) which might decide on a permission to implement a specific contract in a specific country or conflict area under current political circumstances. Only companies that are on the open register could apply for a license to implement a contract on international markets. There are motivated proposals to base a system of licensing on licensing not of companies, but of specific contracts on operating abroad (thus to license the export of military and security services). An enforcement mechanism should be put in place so that companies would have to follow the registration and obligatory transparency procedures, under the risk of not getting a license for foreign contracts or having such a license withdrawn.
45. A monitoring system of oversight of practical activities of PMSCs could be put in place. The example of the arms trade, where the FCO and embassies and special agencies of the United Kingdom worldwide are overseeing the legality of the license, could be a good starting point for putting in place such a mechanism. The BERR compliance inspectorate, centrally, and British embassies and High Commissions worldwide could monitor the compliance of the implementation of licensed contracts, in a similar way to what they are mandated to do under the Export Control Act (2002).
46. Finally, oversight of the whole mechanism should be with Parliament, thus providing a political oversight to the process.
47. It is important to note that the concrete configuration of the system of regulation and the distribution of responsibilities between agencies is to be fully decided by the United Kingdom Government. Tasks of registration, licensing, monitoring, etc. could be delegated to existing agencies, or to a new specially created body, or partly delegated to a national association of companies. What is important is to make arrangements for the regulation of PMSCs in a systematic way, under a clear policy line approved by the Government. Participation by the United Kingdom Government in the elaboration of the Montreux Document on private military and security companies after the introduction of the Green Paper may be considered as an initial step in this direction.
48. Finally, the Working Group would recommend that the United Kingdom, as a permanent member of the Security Council and one of the two main countries of origin of internationally operating PMSCs, might consider to initiate and sponsor, within the United Nations system, the elaboration and adoption of an international instrument on PMSCs, so that such a convention would complement national regulations and ensure both clear criteria and permitted limits for the normal operation of that industry and full compliance of PMSCs with the norms of international law, especially humanitarian law, and allow for the enjoyment of universally accepted human rights.
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* Soumission tardive.
** Le résumé du présent rapport est distribué dans toutes les langues officielles. Le rapport proprement dit est joint à l’annexe au résumé, et il est distribué en anglais seulement.
[1] 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 by Commission on Human Rights resolution 2005/12, para. 12 (e). The Working Group is composed of five independent experts serving in their personal capacities, and headed by its Chairperson-Rapporteur, Mr. Alexander Nikitin (Russian Federation). The other Working Group experts are: Ms. Najat al-Hajjaji (Libyan Arab Jamahiriya), Ms. Amada Benavides de Pérez (Colombia), Mr. José Luis Gómez del Prado (Spain) and Ms. Shaista Shameem (Fiji).
[2] DCAF, F. Schreier, M. Caparini, Privatising security: law, practice and governance of private military and security companies, Occasional Paper No. 6.
[3] The Economist, 27 March 2004, p. 37 in James K. Wither, “European Security and PMCs: The Prospects for Privatized ‘Battlegroups’”, The Quarterly Journal, Summer 2005.
[4] International Alert, Damian Lilly, Regulating Private Military Companies: The Need for a Multidimensional Approach, 24 June 2002, p. 2.
[5] Green Paper, “Private Military Companies: Options for Regulation” (HC577), London, February 2002.
[6] War on Want, Up Front Review Private Armies, February 2008.
[7] EDM 785, “Private Military and Security Companies”, 24 January 2008, primary sponsored by David Anderson, http://edmi.parliament.uk/EDMi/EDMDetails.aspx?EDMID= 34949&SESSION=891.
[8]In paragraph 22 of its general comment No. 32, the Human Rights Committee said that “Trials of civilians by military or special courts should be exceptional, i.e. limited to cases where the State party can show that resorting to such trials is necessary and justified by objective and serious reasons, and where with regard to the specific class of individuals and offences at issue the regular civilian courts are unable to undertake the trials.” This argument was also underscored by the Committee in its decision concerning communication No. 1172/2003 (Madani v. Algeria). In this decision, the Committee considered “that the State party must demonstrate, with regard to the specific class of individuals at issue, that the regular civilian courts are unable to undertake the trials, that other alternative forms of special or high-security civilian courts are inadequate to the task and that recourse to military courts is unavoidable. The State party must further demonstrate how military courts ensure the full protection of the rights of the accused pursuant to article 14 [of ICCPR]. … Nor does the mere invocation of domestic legal provisions for the trial by military court of certain categories of serious offences constitute an argument under the Covenant in support of recourse to such tribunals”.