8. Private Military and Security Services

The last decade has seen a marked increase in the use of private security or military companies by governments, companies and also inter-governmental organisations (IGOs) and even non-governmental organisations (NGOs) to provide security training, logistics support, armed security and, in some cases, armed combatants.

Three terms are often used interchangeably in the debate on the privatisation of security:
mercenaries, private military companies and private security companies. They can be defined as:

* mercenaries – individuals used by non-state armed groups and sometimes by governments who fight for financial gain in foreign conflicts;

*private military companies (PMCs) – corporate entities providing "offensive" services
designed to have a military impact in a given situation that are generally contracted by
governments; and

* private security companies (PSCs) – corporate entities providing "defensive" services to
protect individuals and property, frequently used by multinational companies in the extractive sector, humanitarian agencies and individuals in situations of conflict or instability.

Mercenaries:
Amnesty International believes that all governments should oppose the use of mercenaries as they operate outside the normal criminal justice system and on the fringes of military command structures. This can have important consequences for the protection of human rights, because mercenaries in various conflicts around the world have executed prisoners and committed other serious human rights abuses. It is much harder to hold mercenaries to account than regular members of a country's security force, not least because such personnel can leave the country at any time and thus escape any accountability.

Amnesty International has raised concerns about such mercenary activity in a number of countries including Papua New Guinea,(214) the former Zaire,(215) Cote d'Ivoire(216) and Equatorial Guinea.(217) Past examples of EU citizens acting as mercenaries include: Irish mercenaries allegedly acting as paid assassins in Namibia(218) and French mercenaries training and leading private armies in the Comoros.(219) More recently, in 1995 the government of the Federal Republic of Yugoslavia (FRY) claimed that citizens from Austria, France, Germany, Italy Netherlands and the UK amongst others had fought as mercenaries with the Croatian and Bosnian forces against the Yugoslav People's Army (JNA) and Serbian forces.(220) As the case of Cote D'Ivoire below shows, the use of mercenaries continues in current conflicts and it would appear that EU governments still seem unable or unwilling to ensure that their nationals do not carry out or facilitate human rights abuses in recipient countries.

Curbing Mercenarism:
Introducing effective international legislation to prohibit mercenaries has proved difficult, particularly as "mercenaries usually deny that they are mercenaries and present altruistic, ideological and even religious reasons to mask the true nature of their participation under international law...but in actual practice the constant factor is money. Mercenaries are paid for what they do. The hired mercenary attacks and kills for gain, in a country or in a conflict not his own."(221)

At the global level the international community has so far failed to introduce effective controls on mercenaries. In 1989 the UN General Assembly adopted the International Convention against the Recruitment, Use, Financing and Training of Mercenaries, which finally came into force in October 2001.(222) This declared mercenary activity to be an offence under the Convention and called on states to take preventative measures against their recruitment, financing, training and use.

In response to a question from Amnesty International, the Irish government's Department of Foreign Affairs stated that whilst Ireland, along with its EU colleagues, had expressed support for the UN Mercenary Convention they had not acceded to it. This response is consistent with that from other EU governments. For example the UK Green Paper on Military Companies states that: "The UK, in common with most other Western Governments, has not become party to the Convention mainly because it does not believe that it could mount a successful prosecution based on the definitions in the Convention. This is because of the extreme difficulty of establishing an individual's motivation beyond reasonable doubt. It is doubtful whether it would be practical to try to amend the Convention at this stage."

Whilst Germany and Poland have signed the Convention, the only EU states to have ratified or acceded to it have been Belgium, Cyprus and Italy. However, whilst the international approach seems to have stalled, a number of countries, such as South Africa and France, have introduced legislation prohibiting mercenaries and controlling private providers of MSP services.

South Africa's Regulation of Foreign Military Assistance
The 1998 South African Regulation of Foreign Military Assistance Act is the most far-reaching national legislation dealing with mercenaries and private military companies in the world. Mercenary activity is banned under the Act, however, its wider purpose is to regulate foreign military assistance, defined as including: "advice and training; personnel, financial, logistical, intelligence and operational support; personnel recruitment; medical or paramedical services, or procurement of equipment." The rendering of foreign military assistance is controlled by a licensing and authorisation procedure under the competence of the National Conventional Arms Control Committee. The Act includes extra-territorial application and punitive powers for those that do not abide by it.(223) There have been some prosecutions and convictions under the act, and there is a dedicated unit within the office of the National Prosecuting Authority in Pretoria involved in conducting prosecutions under the act.

France:
A new law in France was passed on 14 April 2003 aimed at preventing French mercenary activity abroad. Any individual recruited for the specific aim of fighting in an armed conflict in exchange for personal advantage or compensation, without being a citizen of a state involved in the armed conflict, a member of the armed forces of this state or an envoy of a state other than those involved in the armed conflict, will be subject to fines and imprisonment: five years and 75,000 euros for an individual, 7 years and 100,000 euros for a recruiter and organiser of mercenary operations. (224) In August 2003 the new law was reportedly put into effect when 11 people were arrested in Paris for their suspected involvement in a plot to overthrow the government of Cote D'Ivoire.(225) Several of them including the alleged leader were released on bail following a decision by a French appeal court in September 2003.
In 2003 Amnesty International called on the French and South African authorities to take action to investigate the reported use of mercenaries from France and South Africa in Cote d'Ivoire.(226)

Private military companies (PMCs) and private security companies (PSCs).
Whilst the international community has sought to prohibit the activities of mercenaries outright, this has not been the case with private military companies (PMCs) or private security companies (PSCs). It is argued by a number of governments, businesses and NGOs that there are certain legitimate and acceptable roles for PMCs and PSCs, as long as they act in accordance with national and international law. As shown by the information below, the provision of private military and security services is a growing market. Research for this report identified 51 companies in 8 EU Member States and new member countries providing private military or security services or training(227).

However, in his 2001 report the UN Human Rights Commission's Special Rapporteur on the use of mercenaries states: "While private companies play an important role in the area of security, there are certain limits that should not be exceeded. They should not participate actively in armed conflicts, nor recruit and hire mercenaries, much less attempt to replace the State in defending national sovereignty, preserving the right of self-determination, protecting external borders or maintaining public order."(228) Of particular concern is the lack of accountability and absence of regulation in the private provision of military and security services that are being exploited by unscrupulous companies and mercenaries,

The national legislation applicable to PSCs and PMCs varies throughout the EU, with no harmonised or overarching EU administrative framework or criteria. Private military or security companies have the potential to carry out directly, or to facilitate, human rights abuses by non-state and state actors in the recipient country. If this risk is to be minimised it is vital that those companies operating within the rule of law are properly registered, and that international transfers of such services are subject to stringent export controls based upon international human rights and humanitarian law.


Private Military Companies

French Private Military Services(229) :
Défense Conseil International (DCI), 49.9 per cent owned by the French government and 50.1 per cent by private investors, has provided military and security training, advice, maintenance and technical assistance to a number of foreign countries.(230) DCI has several subsidiaries including NAVFCO and COFRAS, both of which can supply consultancy, equipment and operational training services as well as the transfer of know-how.(231) However, there appears to be no clear legal accountability to government or parliament for its activities. It claims to have around 700 French Army or retired army personnel, and works closely with the General Arms Delegation in the Ministry of Defence and the Department of Foreign Relations. In a conference in 2003 run by these two organisations with the Institute of International and Strategy Relations, the president of DCI, Yves Michaud, reacted strongly against an Amnesty International (France) speech about the need for transparency and respect of human rights.(232) Despite attempts by Amnesty International to contact DCI no response has as yet been forthcoming.

Private Security Companies (PSCs):

Services provided by PSCs vary enormously and can range from perimeter and on-site security, the provision of transportation and logistics, to intelligence gathering and interrogation. There are a number of cases where PSCs have directly and indirectly contributed to human rights abuses.

Danish Firm in Israeli Occupied Territories
In March 2002 the Danish-company Group 4 Falck paid US$ 30m for 50% of the shares – and controlling interest - of Hashmira, Israel's largest private security company. Hashmira is the largest security company operating in the West Bank with over 100 armed guards stationed at Jewish settlements. UN Security Council Resolution 446, passed in 1979, affirms that Israeli settlements are illegal, in accordance with article 49 of the fourth Geneva Convention, which prohibits the transfer of a civilian population to occupied territory. The illegality of Israeli settlements in the Occupied Territories is recognized by the EU.

A Guardian investigation(233) in the settlement of Kedumim showed that Hashmira's guards worked closely with Israel's military and security apparatus. The investigation reportedly found that the guards, many of whom were Jewish settlers, routinely prevented Palestinian villagers from cultivating their own fields, travelling to schools, hospitals and shops in nearby towns, and receiving emergency medical assistance. Intimidation and harassment were reportedly common, causing many villagers to fear for their lives.

Following this investigation Falck/Group 4 announced that it was withdrawing the Hashmira guards out of the West Bank. A spokesman said: "Even if our investigation clearly indicates that our activities on the West Bank do not entail a breach of human rights, it is not enough for us to be legally in the clear…In some situations there are also other criteria, which we must take into consideration. And to avoid any doubt about whether Group 4 Falck respects international conventions and human rights, we have decided to leave the West Bank."(234)

Netherlands company:
In 1997, a Netherlands-based company, Satellite Protection Services was established which consisted of four operating divisions and offered a range of private military and security services. Satellites Maritime Services (SMS) offered services to ship owners around the world which included specially trained Maritime Security Teams (MST). The members of these teams were recruited mainly from UK and Netherlands special forces. In August 1999, SMS announced its intention to establish an Operating Centre in the Subic Bay Freeport (Philippines). The company also announced that there were also plans for liaison offices in Gambia and Curaçao to respectively cover the regions Africa and South America.(235) It was reported in 1999 that the company had been "disowned by Netherlands officials" but that "the authorities have conceded that they are powerless to act unless Dutch law is infringed."(236)

Lessons to be learned
EU governments should introduce legislation to control and monitor the activities of private providers of military, police and security services. Companies and individuals providing such services should be required to register and to provide detailed annual reports of their activities. Every proposed international transfer of personnel or training should require prior government approval. This should be granted in accordance with publicly available criteria based on international human rights standards and humanitarian law. Amnesty International believes that such companies should operate in a manner consistent with international human rights standards and international humanitarian law. EU governments should give consideration to developing a regional mechanism for stringently controlling the activities of private providers of military, police and security services, building upon best practice within and outside the EU.