UN WORKING GROUP ON THE USE OF MERCENARIES CONCLUDES VISIT TO HONDURAS

The Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the rights of peoples to self-determination has completed its visit to Honduras, which took place from 21 August to 25 August 2006.

The Working Group conveys its appreciation to the Government of Honduras for the invitation to undertake a visit to Honduras, and welcomes the cooperative and constructive dialogue it has held with the executive, legislature, judiciary and other state organs. Over the course of the visit, the Working Group delegation met with the respective Ministers for Foreign Affairs, Defense, Labour, Justice, Internal Affairs, deputies from the National Congress, the Attorney-General, the President of the Constitutional Court, the National Human Rights Commissioner, the National Bar Association, as well as with departmental and municipal authorities in Tegucigalpa and Lepaterique. The Working Group delegation also benefited from meeting with other organs of the Honduran society, including a wide range of non-governmental organizations, private security companies, individuals, and held an Open Forum at the National Pedagogical University. In the course of its visit to Honduras, the Working Group obtained useful information which will contribute towards fulfilling its mandate to study and identify emerging issues, manifestations and trends regarding mercenaries, mercenary-related activities and the role of private security and private military companies and their impact on human rights.

As a general principle, the Working Group delegation wishes to stress the primary responsibility States have under international and domestic law to maintaining public security and law and order. Accession to the 1989 Convention against the recruitment, use, financing and training of mercenaries is one step towards this end and is thus encouraged by the Working Group. This needs to be complemented with effective constitutional and legislative protection at the national level. However, as outlined in the forthcoming report to the 2006 General Assembly, the Working Group notes the increasing phenomenon of outsourcing by States of core military and security functions to private companies. The Working Group is particularly concerned that some private security and private military companies are committing human rights violations with impunity whilst operating in armed conflicts. Such situations are often associated with the creation by transnational companies of satellite subsidiaries with legal personality in one country, providing services in another and recruiting personnel from third countries. Private security and private military companies and their employees fall into a gray area not specifically covered by the 1989 Convention, which demonstrates the need for appropriate national regulation, control and monitoring of the activities of these security companies, to ensure the responsibilities of the state towards effective protection of human rights. In terms of human rights obligations, while the responsibilities of non-state actors remain debated, the Working Group considers that also private enterprises as organs of society are bound by obligations in the Universal Declaration of Human Rights.

The Working Group welcomed the swift response and invitation of the Government of Honduras, and considers this engagement with the mandate as a means to commence a continuous dialogue and cooperation. In the course of the visit, the Working Group observed a number of positive steps aimed at regulating private security companies in national legislation and practice. The Working Group was encouraged by the preparations underway in the Ministry of Foreign Affairs, and by the receptivity shown by deputies of the Congress, to accede without delay to the 1989 International Convention. The Working Group extends its support in this regard, and offers to provide commentary on the relevant provisions in the Penal Code which is currently being revised. These legislative moves appear to have been complemented by regulatory measures in June 2005 with regard to private security companies, as provided for in the 1998 Organic Law on Police. Developments towards effective monitoring functions include joint inspections of private security companies by the Ministry of Public Security and the Ministry of Labour, and the establishment of a Commissioner in the Ministry of Public Security to explicitly provide oversight of the register of private security companies. The Working Group also welcomed the establishment by the Ministry of Foreign Affairs of an inter-ministerial commission, aimed at ensuring enhanced coordination of the authorities in the promotion and protection of human rights.

The Working Group is concerned by information received regarding Honduran nationals, recruited by firms registered in Honduras which are subsidiaries of foreign based companies, who have received training in Honduras, and the fact that a significant number of these nationals have traveled to Iraq. The Working Group has received information from a number of sources indicating irregularities of contracts, harsh working conditions with excessive working hours, partial or non payment of remuneration, ill-treatment and isolation, and lack of basic necessities such as medical treatment and sanitation. Whereas they had been recruited to work as security guards, the individuals received military training in Honduras and or Iraq, and found themselves performing functions not foreseen nor agreed to in their contracts. The Working Group also received information about some 100 Chilean individuals having traveled to receive and perform military training in Honduras.

These two lines of inquiry indicate serious shortcomings in meeting obligations under international law, including labour standards, and raise questions of the constitutionality of the activities. While the prevailing socio-economic conditions and high levels of unemployment have made such contracts attractive, this does not however lessen the responsibility of the Government. There have been grave omissions in controlling the situation and in guaranteeing the rights of Hondurans, particularly by the Ministries of Foreign Affairs, Public Security, Defense and Labour. The training of foreign nationals in Honduras without approval from the National Congress constitutes an omission of the State. Another omission is the irregularities and lack of protection in the contracts of Honduran nationals employed by private security companies to work in Iraq and lack of comprehensive regulations and monitoring mechanisms to ensure accountability of private security companies working in Honduras.

In view of the above, the Working Group provides the following preliminary recommendations:

- Swift accession to the 1989 International Convention against the recruitment, use, financing and training of mercenaries, and to establish as an offense acts committed by mercenaries as well as mercenary-related activities in domestic legislation.
- The strengthening and dissemination of the regulatory framework on private security companies, adopted in June 2005. In addition, the Government should consider the possible insertion of a component on human rights and relevant UN norms in the training provided by private security companies to their employees.
- Maintaining by the authorities of a transparent registry of private security companies, including on issues of ownership, control and possible conflicts of interests.
- The adoption of measures by the competent authorities, including the Attorney-General, to act with speed and vigor on complaints submitted by individuals having returned from Iraq, and to consider the complicity and responsibility of private security companies and individuals involved, also taking into account potential questions of extraterritorial jurisdiction.
- The adoption of urgent measures by the Government of Honduras to guarantee the rights of those Honduran nationals which remain working in Iraq in circumstances as described above.

The Working Group will prepare a comprehensive report on the visit to Honduras, which will be presented to the United Nations Human Rights Council in 2007 and reflected in its report to the General Assembly.

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The mandate of the Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the rights of peoples to self-determination was established by the Commission on Human Rights in 2005. The Working Group is composed of five independent experts, serving pro bono in their personal capacities: Ms. Najat Al-Hajjaji (Libyan Arab Jamahiriya), Chairperson Ms. Amada Benavides (Colombia), Mr. José Luis Gomez del Prado (Spain), Mr. Alexander Nikitin (Russia) and Ms. Shaista Shameem (Fiji).

For more information on the resolution establishing the mandate of the Working Group, please consult the website of the Office of the High Commissioner for Human Rights at: http://www.ohchr.org/English/issues/mercenaries/index.htm