As the world continues to witness a disturbing increase in the use of private military and security companies (PMSCs), the United Nations (UN) has taken it upon itself to seek ways of addressing the privatization of the military/security phenomenon. States continue to contract PMSCs to render various services in conflict situations such as in Iraq and Afghanistan. This has presented many challenges in terms of regulating and controlling the use of PMSCs in such situations, as there is always the fear that they are arguably more often than not prone to engage in mercenary activities. These challenges have resulted in a movement within the UN towards crafting a convention on the regulation of the PMSC industry.
During its 63rd session (70th plenary meeting held on 18 December 2008), the UN General Assembly adopted Resolution 63/164 on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination. It expressed concern regarding "the new modalities of mercenarism, and noting that the recruitment of former military personnel and ex-policemen by private military and private security companies to serve in their employ as 'security guards' in zones of armed conflict seems to be continuing." Some African states that have witnessed the recruitment of these so-called "security guards" include South Africa, Namibia and Uganda.
In an attempt to adress this issue, the UN established a 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. On 7 April 2005, under the auspices of the UN and during its 38th meeting, the Commission on Human Rights decided to end the mandate of the Special Rapporteur on the use of mercenaries as a means of impeding the exercise of the right of peoples to self-determination, and to establish this Working Group. Its establishment meant extending the mandate of the Special Rapporteur, which was mainly mercenaries, to that of PMSCs, which are arguably referred to as the "new modalities of mercenaries". The Working Group maintains an official website at http://www2.ohchr.org/english/issues/mercenaries/index.htm.
The Working Group is currently composed of five independent experts, one from each regional group, namely: Mr. Alexander Nikitin (Russian Federation); Ms. Najat Al-Hajjaji (Libyan Arab Jamahiriya); Ms. Amada Benavides (Colombia); Mr. Jose Luis Gomez del Prado (Spain); and Ms. Shaista Shameem (Fiji), who is also the current Chairperson-Rapporteur. These experts forming the Working Group are responsible for examining situations where mercenaries, mercenary-related activities and non-State actors, including PMSCs, impede human rights or interfere with the self-determination of peoples and the constitutional and social order of States; either as part of security measures, or in armed conflict or in any other situation. Thus far the Working Group has completed country visits to Chile, Fiji, Honduras, Ecuador, Peru, United Kingdom of Great Britain and Northern Ireland. Most recently, the Working Group concluded a country visit to Afghanistan (April 2009), which will be followed by the United States of America in July 2009. More country visits shall hopefully be undertaken in Africa.
The Working Group continues with the work already done by previous Special Rapporteurs on the strengthening of the international legal framework for the prevention and sanction of the recruitment, use, financing and training of mercenaries, taking into account the proposal for a new legal definition of a mercenary which was drafted by Mr. Enrique Bernales Ballesteros in paragraph 47 of his report to the human Rights Commission at its 60th session (E/CN.4/2004/15). The Working Group is, inter alia, mandated to monitor and study the effects on the enjoyment of human rights, particularly the right of peoples to self-determination, of the activities of PMSCs offering military assistance, consultancy and security services on the international market.
More importantly, the Working Group is tasked with the responsibility of preparing a draft of international basic principles that encourage respect for human rights by those PMSCs in their activities. This is in terms of the Human Rights Council Resolution 7/2 on the Mandate of the Working Group, which was adopted during its 41st meeting, held on 28 March 2008. African States that were in favour of Resolution 7/2 include Angola, Cameroon, Djibouti, Egypt, Ghana, Madagascar, Mali, Nigeria, Senegal, South Africa and Zambia. It is upon this basis that the movement towards crafting a convention on the regulation of the PMSC industry is taking place.
Under the leadership of the former Chairperson-Rapporteur, Mr. Alexander Nikitin, the Working Group initiated the draft International Convention on Private Military and Security Companies which can be accessed at the Working Group's unofficial website. This document is a Convention Project, which was elaborated by the experts for Regional Consultation for Eastern European Group and Central Asian Region in Moscow, held on 16-18 October 2008. According to the draft convention, its purpose is that of promoting cooperation between the States so that they can more effectively solve different problems related to the activities of PMSCs, which are of international character. Those State Parties, which shall be bound by the convention, shall be obliged to take all necessary measures including legislative and organizational measures under the fundamental principles and provisions of their domestic laws to address the challenges presented by PMSCs involved in conflict situations.
That Africa finds itself on the receiving end in so far as the engagement of PMSCs is not in dispute. The Working Group has championed one of the most important attempts in addressing PMSCs especially in conflict situations, at the UN level. Resolution 7/21 specifically requests the Working Group to consult States, intergovernmental organizations, non-governmental organizations and other relevant actors of civil society on the implementation of the resolution including the preparation of a draft of international basic principles that encourage respect for human rights by those PMSCs in their activities.
It is therefore critical for States especially in Africa, as well as intergovernmental organizations, non-governmental organizations and other relevant actors of civil society to actively engage in this process, which will eventually lead to the adoption of the draft convention on the regulation of PMSCs. The movement within the UN through the special procedure represented by the Working Group is gaining momentum and Africa must be ready to actively engage on the subject of PMSCs and to comment on the draft convention on PMSCs. Finally this also presents a great opportunity for African States through the African Union to review the now outdated 1977 OAU Convention for the Elimination of Mercenarism in Africa, which does not take into account the emerging new modalities of mercenarism in the form of PMSCs.
Sabelo Gumedze, Senior Researcher, Security Sector Governance Programme, ISS Tshwane (Pretoria)