A pyrrhic victory against the privateers of the twenty-first century at the United Nations Human Rights Council?

José L. Gómez del Prado
Member of the United Nations Working Group on the Use of Mercenaries
José L. Gómez del Prado

José L. Gómez del

Over the last twenty years, Cuba has repeatedly raised the issue in the United Nations of mercenaries and the impact on human rights of the activities of private companies providing services involving military assistance, consultancy and security to the international market. It has also been the main sponsor of United Nations resolutions on this subject.

The attitude of the western countries, who still consider the Cuban initiatives from the perspective of the Cold War, has repeatedly consisted of rejecting the motions tabled by Cuba and voting against the creation, mandate and recommendations of a Working Group on mercenaries.

The member states of the Western Group, mainly the United States of America and United Kingdom, which account for 70% of private military and security companies (PMSC), have argued against the resolutions presented by Cuba on the basis that these companies are institutions which are legitimately registered from a commercial point of view, and their workers are not mercenaries but instead private contractors. These companies execute government contracts, mainly from the United States, for multinational companies, inter-governmental and non-governmental organisations, and among other activities, they train personnel and provide intelligence and passive security. Furthermore, the Western countries consider that the Human Rights Council is not the appropriate forum for debating these issues.

The use of private contractors in Iraq and Afghanistan since 2001, and the violations of human rights that they have committed, have led to great concern and have led to a debate in the international arena on the work that should be done by private military and security companies, the regulations that should apply to them and how their activities should be monitored.

In order to deal partially with these concerns, the two governments of the countries where most PMSCs are located, the United States and the United Kingdom, as well as the Swiss government, the International Committee of the Red Cross, and leading associations in the security industry, the International Peace Organization Association (IPOA) - from the United States - and the British Association of Private Security Companies (BAPSC) - from the United Kingdom - launched the Swiss Initiative, which culminated in 2009 with the adoption of the Montreux Document. This document reiterates the rules of international humanitarian law and human rights and presents a series of good practices to be implemented on a voluntary basis, without any obligation for the companies. However, apart from these excellent examples, which are only presented for public image purposes, good practices cannot depend on self-regulation alone: a mechanism for application regulated and monitored by governments must be established.

If they are only subject to self-regulation, military and security companies will continue to fail to apply the good practices, and the Montreux Document appears to be nothing more than a public relations operation. The tortures committed in the Abu Ghraib prison in Iraq, the summary executions in Nisour Square in Baghdad and the lack of screening procedures in the recruitment of the ex-soldier Danny Fitzsimons should be sufficient evidence for the need to regulate the work of private soldiers. Danny Fitzsimons was diagnosed with post-traumatic stress disorder in January 2004 May 2008 and June 2009, but was hired by ArmorGroup and sent to Iraq without undergoing any medical examination, and 36 hours after he arrived, he killed two of his colleagues and wounded a third.

It was precisely because of the consequences of the work of these military and security companies for human rights that the Working Group on mercenaries, in its 2010 report, recommended that the United Nations Human Rights Council and the General Assembly create a binding instrument that regulates and controls the work of these companies in the national and international arena.

For the first time, the Human Rights Council is being presented this year with a different resolution, in which the activities of private military and security companies appear separately from the traditional text on mercenaries. The main co-sponsor of this resolution has been the South African government, a country that was forced to repatriate the bodies of 40 South African citizens contracted by private military and security companies to work in Iraq.

The resolution provides for the creation of an intergovernmental group with open membership, with the mandate to reduce a binding legal instrument to monitor and regulate the consequences of the activities of private military and security companies for human rights, based on the principles, the main elements and the draft text of a possible convention proposed by the Working Group on the use of mercenaries.

The resolution was adopted on 1 October, with 32 votes in favour, 12 against and 3 abstentions. The negative vote by the delegations from the western group (except for the abstentions of Norway and Switzerland) shows that the interests of the security sector, which is a new and expanding industry - with an estimated annual income of 100,000 million dollars - were defended vigorously, as on other occasions. In this respect, it is worth mentioning that the regional talks which were to be held by the Western states in Madrid in October 2010 were cancelled due to the lack of interest by the Western governments in participating.

The negative vote by the western states (including Spain, a member of the Human Rights Council), despite the amendments made by the sponsors of the resolution in an attempt to achieve consensus, highlights the firm commitment from the very beginning by the states hosting the new twenty-first century privateering industry to take no part in a far-reaching debate on all the issues raised by the activities of private military and security companies, such as the privatisation of war. Without the participation of the United Kingdom and United States, the main exporters of the PMSC's activities, and of other western states in which this new industry continues to grow, the resolution adopted by the Human Rights Council appears to be a pyrrhic victory, unless civil society and public opinion in the Western countries exert enough pressure on their respective governments.