A/HRC/4/42
page 19
that such agreements, including with regard to Ecuador and Colombia,33 have been criticized by
local NGOs for not having been properly approved by the national legislatures. The result is that
criminal acts by PMSC employees can go unpunished. This is of concern to the Working Group.
It notes information received of employees of PMSCs operating under Plan Colombia with
allegations of illicit drug and munitions, trafficking and sexual assaults on minors. None of these
cases have been treated by the judiciary in Colombia due to the immunity enjoyed by the persons
in question. The Working Group notes the need to end the legal loophole of PMSCs as
non-State actors, and for States to avoid using PMSCs as means to conduct its policies in
impunity.
III. THEMATIC ISSUE: THE STATE AS PRINCIPAL
HOLDER OF THE USE OF FORCE
56.
The Working Group notes that the phenomenon of mercenaries has passed from being an
activity of an individual into becoming an activity of wider scope and reach, with private
military and security companies lending services that are traditionally and characteristically
among the core functions and competencies of the State. This phenomenon is in some cases
impeding the enjoyment of human rights. The Working Group is interested in elucidating this
surrender of the monopoly of the use of the force on the part of States, and notes that
privatization or delegation of security does not diminish the responsibilities of the State under
international law.34
57.
The Working Group notes the position of several Governments that consider the issue of
a mercenary recruitment as an issue of “labour mobility” rather than an issue for prosecution of
the crime of mercenarism. In this regard, an argument commonly forwarded is that labour
contracts and their acceptance do not concern the State, as these constitute private acts.
However, the Working Group reiterates existing State obligations to establish procedures backed
by a juridical system to ensure the protection of their nationals, especially in the field of security
and labour.
58.
The Working Group considers that certain provisions of international human rights
instruments require States to protect against violations by both State agents and private persons
or entities. Therefore, States must take appropriate steps to prevent, and if not, investigate and
punish, violations and harm caused by private entities. States are under a duty to exercise due
diligence to prevent and punish abuses also by non-State actors, and States are encouraged to
take legislative and other measures to ensure victims have access to effective remedies as
determined and enforced by relevant authorities.35 In ensuring due diligence under international
33
Text of bilateral agreement between the Governments of the United States and Colombia,
signed on 17 September 2003.
34
See the “Rapport du Conseil fédéral Suisse sur les entreprises de sécurité et les entreprises
militaires privées” (pursuant to the postulat Stähelin 04.3267 du 1er juin 2004: Entreprises
privées chargées de tâches de sécurité) of 2 December 2005.
35
See CCPR/C/21/Rev.1/Add.13, general comment No. 31 on the nature of the general legal
obligation imposed on States parties to the Covenant (2004), para. 8.
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