Submitted to the General Assembly by 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 in accordance with the latter’s resolution 79/162 and Human Rights Council resolution 51/13, this report presents the latest trends on the use of mercenaries and related actors as enablers and proxies of human rights violations, war crimes or support in illicit activities.
Mercenaries, mercenary-related actors, private militaries and security companies present themselves as proxies, enablers or facilitators in operations such as armed conflicts, organized crime, terrorism and in illicit operations such as arms trafficking. They are hired by States or non-State actors for assistance in conducting those operations by direct delegation (no autonomy of the proxy), orchestration (greater autonomy of the proxy of deciding how to conduct operations) or sanctioning (full autonomy in an enabling environment). Proxies themselves are supported by the States in which they conduct operations providing assistance or simply not obstructing operations. These States render activities smoother by allowing support through diplomatic means, illicit financing, engaging in cybernetic operations and the like, becoming complicit themselves.
Even though international law does not have a definition of proxy or a comprehensive definition of mercenaries, some clauses help in understanding their role and the responsibility of States with regards to the matter. Article 1, paragraph 2 (a), of the International Convention against the Recruitment, Use, Financing and Training of Mercenaries highlights that the use of violence of these entities undermines territorial integrity and the constitutional order of States. However, the convention has a very low ratification rate and low enforcement. Article 1, paragraph 2, of the Organization of African Unity Convention for the elimination of mercenarism in Africa affirms that any representative of the State that “shelters, organises, finances, assists, equips, trains, promotes, supports or in any manner employs bands of mercenaries (thus partly including proxies and enablers, but leaving out bodies such as security companies) to disrupt a State’s normal State of affairs is committing a crime”.
The lack of regulation limiting mercenaries and related actors, coupled with the current context of increased wars and violence, creates the perfect grounds for their employment. The current surge in armed conflicts, extremism and terrorism, the globalization of organized crime and the increased ineffectiveness of peacekeeping missions (or lack thereof) and decreasing intervention of States and organizations to tackle those issues results in more mercenaries. They fill a void when States are confronting instability, due to the employment of temporary solutions that ease the problem but do not confront the root cause. When States face coups d’etat, attacks from extremist groups, deep organized crime, they choose to hire bodies that grant short-term security that temporarily contain the problem. It’s here that human rights violations occur. Mercenaries are ruthless, they do not care for the citizens of countries they operate in, since they do not have any obligation or affiliation towards them. Containment is enacted through violent means, killings, beatings, with no respect for the population. Repression is used as a tool for momentary resolution.
Even more concerning is the increasing formalization of the use of mercenaries, by legalizing their employment, as the Working Group highlights. For example, in situations of crisis, where emergency power arises and special ordinances are allowed, States regimes change and allow for higher executive powers and differentiation from normal state of affairs. Arbitrary arrests, higher militarization, higher civilian control are just some of those emergency powers enacted by States through specialized entities composed of mercenaries and ad-hoc security groups. Those actions result in human rights violations towards civilians, who live in a situation of fear, violence, disrespect for their integrity, rights to protest or right to self-determination as a population. The “privatization of police” erodes public state institutions, creating two security bodies (one national one not), rendering the identification and separation really difficult. In this gap, mercenaries and related actors are free to enact whatever means they deem necessary to contain the crisis, thus resulting in killings, beatings, arrests and torture. The boost in digital warfare in the last years, with cyberattacks, hacking, espionage, have increased the engagement of security companies in online contexts and warfare. Thus civilian data online is not safe either, resulting in violations of privacy for example.
All the burden is carried by the State in which actions are sustained and especially by its civil population. Firstly, they disrupt States, their territory, undermine their sovereignty and impede the normal course of action. This leads to fragility in States institutions and instability, that usually parallels with war crimes and crimes against humanity towards civilians. The latter is not spared in situations of counter-terrorism, insurgency control, armed conflicts, since it bears the burden of mass killing, executions, sexual violence, brutality, destruction of vital infrastructure. These actions strip civilians of everything, from physical integrity to resources, annihilating rights to self-determination.
In conclusion, the Working Group postulates essential recommendations to limit the use of mercenaries (and related actors) and obligate States to take responsibility. Firstly, at international law level, the “International Convention against the Recruitment, Use, Financing and Training of Mercenaries” and the “Organization of African Unity Convention for the elimination of mercenarism in Africa” must be ratified. Yet, they are not enough: there is the need to push for the postulation of international treaties that also regulate private military and security companies and for the strengthening of domestic regulations.
In other words, due to the nature of mercenaries disrupting a State’s territorial integrity and constitutional order, States have responsibilities and obligations to reduce, erase or not employ them. States are to be held responsible for actions of proxies which are detrimental to human rights, as they act under their guidance. Consequently, they must sanction them accordingly. This same concept holds also for States or actors that create an enabling environment in which they can act freely. They must limit complicity with mercenaries and overall limit their action.
At international law level, the framework must be modified to integrate other treaties, clauses and articles for a comprehensive understanding of mercenaries and related actors, since the lack thereof creates legal voids/grey areas and thus plenty of margins of action for private military and security companies to act ruthlessly. The United Nations is here called to harmonize work throughout all its bodies creating one general guideline and postulate clear provisions on the matter and observe abuses thereof, especially in monitoring human rights violations.
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