C Explanatory memorandum, by Mr Kimmo
Sasi
1. The Committee on Legal Affairs and Human Rights warmly
welcomes the report by Wolfgang Wodarg on private military and security
firms and the erosion of the state monopoly on the use of force.
It is timely and covers in a pertinent way many important political
issues, such as the erosion of the authority of states, loss of democratic
oversight and accountability, impunity and the “conflict of interest”
situation in which such companies operate: their future profits
depend on the prolongation of conflicts.
2. The subject of the report also touches on a large number of
legal issues pertaining to international human rights and humanitarian
law, constitutional law, and national and international criminal
law, as well as several areas of national and international private
law (contracts and torts, corporate and employment law, as well
as conflicts). I should like to stress from the outset that neither
the report of the Political Affairs Committee nor the present opinion
can adequately cover all these issues, and I therefore fully support
the proposal in the draft recommendation that the Committee of Ministers
should address this issue and prepare a comprehensive legal instrument
aimed at regulating the relations of its member states with PMSCs.
As to the legal nature of such an instrument, I do consider it necessary
that the objective should be a binding legal instrument, such as a
framework convention, which should also be open for signature by
countries which are not members of the Council of Europe. A clear
distinction should be made between firms dealing with military-style
services on the one hand and (domestic) security tasks on the other.
3. Whilst I share, with regret, Wolfgang Wodarg’s point of view
that it is probably too late for an outright prohibition of private
military and security companies (PMSCs), some rolling back or reconquering
of terrain already lost by the states – if I may indulge in using
some military-style language – should still be possible. Let us
not be defeatist! Every state has the duty to guarantee the security
of its citizens, as a matter of human rights. The proper fulfilment
of this duty is also the best way to make PMSCs superfluous.
4. I cannot agree with the statement in the explanatory report
Note that
the development of PMSCs can be explained by “the general trend
– in line with the neo-liberal concept of reducing state activity
to its core tasks and leaving the rest to the market, including
internal as well as external security needs”. While it is indeed disputed
by some neo-liberals that the state should continue to be responsible
for basic infrastructures, education and social protection, the
provision of internal and external security belongs to the very
core of state activity, even in the classical liberal concept of
the “night-watchman state”, along with providing justice through the
court system and ensuring good relations with foreign states through
diplomacy.
5. I also disagree with the rapporteur’s main premise that the
use of PMSCs helps “to increase the limited means available to governments
under downsized defence budgets”.
Note When
military and private security services are “outsourced” by the state
to private contractors, in the end the taxpayer has to shoulder
not only the actual cost of paying and equipping the private “soldiers”
(or mercenaries) deployed under the contract, but also the contractor’s
and other intermediaries’ considerable profit margins. Whilst some
of these expenses may be reduced by “low-cost” employment conditions
and/or compromises on equipment and the qualifications of staff,
any such compromises on quality also come at a cost, namely in terms
of the quality of the services provided and possible glitches which
can cause much damage in terms of human lives as well as in the destruction
of property.
6. The Assembly should therefore have the courage to send a clear
political signal in the sense that the explosive growth of PMSCs,
which are encroaching on classical state functions and are not in
line with all three core values the Council of Europe defends –
democracy, the rule of law and human rights – shall be reigned in
and brought under the effective control of states.
7. In order to devise appropriate regulations and limitations
concerning the activities of PMSCs, it is helpful to distinguish
between “military-type” and “police-type” services, the former often
being provided abroad (outside the company’s home state), and the
latter being provided domestically. The report of the Political Affairs
Committee mainly covers the “military-type” services, or, let us
call a spade a spade, the activities of mercenaries. The police-type
services of PMSCs tend to raise different legal issues, although
certain grey zones and overlaps exist. They deserve the same level
of attention from the Council of Europe, but they must be addressed
distinctly. In fact, whilst the activities of mercenaries are a
worldwide problem that has been taken on, for better or for worse,
by the United Nations, the outsourcing of classic police functions
to private security firms falls very much within the remit of individual
European countries, all of which are bound by the same standards
of human rights and the rule of law. Privatisation of police-type
services is therefore a particularly suitable subject for co-ordination
and harmonisation in the framework of the Council of Europe.
8. The Committee on Legal Affairs and Human Rights wishes to
stress the risk of impunity raised in paragraph 7 of the draft recommendation.
PMSC personnel have indeed committed serious human rights violations,
Note and
the complicated contractual and diplomatic relations involved (between
the staff member and the PMSC, between the PMSC and its home state,
often via intermediaries, and between the home state and the state
of deployment) make it very difficult, if not impossible, to bring
perpetrators to justice. Most importantly, any contractual clauses
excluding liability are null and void, as they are in fact contracts
to the detriment of third parties (the victims of any violations).
The committee intends to address the issue of impunity of PMSC personnel
in its report on impunity in Europe, which it intends to submit
during the Assembly part-session in June 2009 in the framework of
the periodic debate on the state of human rights in Europe.
____________
Reporting committee: Political
Affairs Committee.
Committee for opinion: Committee
on Legal Affairs and Human Rights.
Reference to committee: Reference
No. 3370 of 1 October 2007.
Opinion approved by
the committee on 26 January 2009.
Secretariat of the committee: Mr
Drzemczewski, Mr Schirmer, Ms Maffucci-Hugel, Ms Heurtin.
