Report of INSTITUTE FOR SECURITY STUDIES PUBLIC SEMINAR SERIES THE PRIVATIZATION OF SECURITY: IMPLICATIONS FOR THE AFRICAN UNION AND AFRICAN STATES

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1 Report of INSTITUTE FOR SECURITY STUDIES PUBLIC SEMINAR SERIES THE PRIVATIZATION OF SECURITY: IMPLICATIONS FOR THE AFRICAN UNION AND AFRICAN STATES Friday, 5 th March 2010, 9:00 AM 1:00 PM, Hilton Hotel, Addis Ababa, Ethiopia Compiled by The African Conflict Prevention Programme (ISS Addis Ababa) in collaboration with The Security Sector Governance Programme (ISS Pretoria)

2 Introduction The Security Sector Governance Programme (SSGP-Pretoria) and the African Conflict Prevention Programme (ACPP-Addis Ababa) of the Institute for Security Studies (ISS) organized a public seminar entitled: The Privatization of Security: Implications for the African Union and African States. The main aim of the seminar was to enhance the debate that would identify the nature of the problems and challenges associated with the use of Private Military and Security Companies (PMSCs) in Africa and to discuss the strategies for addressing these problems and challenges faced by African States especially in so far as regulating, monitoring and overseeing PMSCs within their jurisdictions. The seminar was further aimed at building a knowledge foundation for the regional consultation of the United Nations 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 with African States, which took place between 3 rd and 5 th March 2010 in Addis Ababa. Among other things, the mandate of the UN Working Group is to elaborate on guidelines, norms and basic principles for the regulation and oversight of the activities of PMSCs in order to encourage further protection of human rights. The regional consultation was therefore a forum for African States to share their experiences of PMSCs. It was therefore important that intergovernmental organizations, the diplomatic community, civil society organizations and the public in general get involved and engaged in this important debate on PMSCs in Africa, including the developments at both international and regional levels. This report captures background to the organization of the seminar and proceedings, which took place on 5 th March The seminar was organized with the support of the Embassy of Canada to the Republic to the Federal Democratic Republic of Ethiopia and the International Development Research Centre. A product of a collaboration between the African Conflict Prevention Programme (ISS Addis Ababa) and the Security Sector Governance Programme (ISS Pretoria), the seminar was organized under the Chatham House Rules. Dr Tim Murithi chaired the seminar while Mr Wondwosen Michago acted as Rapporteur for the Seminar. Background to the Seminar In 2005 the Commission on Human Rights through Resolution 2005/2 established the United Nations 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. The Working Group was established inter alia to monitor and study the effects of the activities of private companies offering military assistance, consultancy and security services on the international market on the enjoyment of human rights, particularly the right of peoples to self-determination, and to prepare draft international basic principles that 1

3 encourage respect for human rights on the part of those companies in their activities. The Working Group is composed of five independent experts serving in their personal capacities: Ms. Shaista Shameem (Chairperson-Rapporteur, Fiji), Ms. Najat al-hajjaji (Libyan Arab Jamahiriya), Ms. Amada Benavides de Pérez (Colombia), Mr. José Luis Gómez del Prado (Spain), and Mr. Alexander Nikitin (Russian Federation). Ms Shaista Shameem was one of the guest speakers during the ISS Seminar in Addis Ababa. On 4 March 2008, the United Nations General Assembly in Resolution 62/145 requested the Office of the High Commissioner for Human Rights to convene regional governmental consultations on traditional and new forms of mercenary activities as a means of violating human rights and impeding the exercise of the right to self determination, in particular regarding the effects of the activities of private military and security companies [PMSCs] on the enjoyment of human rights. This was to be achieved in collaboration with the Working Group, which was entrusted with the responsibility of consulting States and intergovernmental and non-governmental organizations in the implementation of the Resolution. The work of the Working Group has thus far been commendable especially in so far as spearheading the movement towards addressing the challenges posed by PMSCs, especially in conflict situations. Further, Human Rights Council Resolution A/HRC/10/11 of 26 March 2009 requested the Office of the High Commissioner for Human Rights to continue supporting the Working Group convening regional governmental consultations on this matter [ ] bearing in mind that this process may lead to the holding of a high-level round table of States, under the auspices of the United Nations, to discuss the fundamental question of the role of the State as a holder of the monopoly of the use of force, with the objective of facilitating a critical understanding of the responsibilities of the different actors, including private military and security companies in the current context, and their respective obligations for the protection and promotion of human rights and in reaching a common understanding as to which additional regulations and controls are needed at the international level. The Working Group has thus far held four regional consultations: - in Panama City for Latin America and the Caribbean (2007); in Moscow for the Eastern European Group and Central Asia region (2008); in Bangkok for the Asian Group (2009); and in Addis Ababa for the Africa region (2010). The latter regional consultation preceded the ISS Seminar in Addis Ababa, which this report covers. The main objectives of the abovementioned regional consultations was to do the following: - to assess and review current practices related to mercenaries and PMSCs registered, operating or recruiting in the region; to analyse existing national and regional legislation and share information on steps taken by States to introduce legislation and/or other measures to regulate and monitor the activities of PMSCs; to elaborate on 2

4 guidelines, norms and basic principles for the regulation and oversight of the activities of PMSCs to encourage further protection of human rights, and to seek views on a new International Convention on the regulation, monitoring and oversight of PMSCs; and to promote adherence to the UN Convention on the use of Mercenaries. Welcoming Remarks Dr Tim Murithi, Head of the Peace and Security Council Report Programme, ISS-Addis Ababa, made the welcoming remarks and noted that the existence of PMSCs raised ethical and legal issues nowadays. These were the burning questions that the African States and Continent were grappling with and this seminar was an attempt to address these questions. On behalf of the ISS, Dr Murithi thanked the Canadian Government and its Embassy in Addis Ababa for its help and collaboration in organizing the public seminar. Introductory Remarks by Chair Her Excellency Michele Levesque, the Ambassador of Canada to the Federal Democratic Republic of Ethiopia made the introductory remarks. H.E. Levesque noted that all of us are interested in further understanding and investigating the role of the PMSCs. A peaceful resolution of conflict, human rights and international humanitarian law must tackle the intricacies involved in this issue. She also added that the emergence and rapid growth of PMSCs in many complex peacekeeping, humanitarian and conflict situations calls for an open and pragmatic dialogue. She expressed Canada s commitment to contribute to the research, which will lead to better and practical policies in the field. Finally, presenting their profiles, the Ambassador introduced the three panelists and kindly invited them to make their presentations. Mr Sabelo Gumedze Speaker s Profiles Mr Sabelo Gumedze is a Senior Researcher at the Institute for Security Studies (ISS) in Pretoria, South Africa. Mr Gumedze holds a Licentiate Degree in Political Science (International Law) from Åbo Akademi University, Finland; an LLM degree in Human Rights and Democratisation in Africa from the University of Pretoria, South Africa; an LLB and BA in Law degrees from the University of Swaziland respectively. He is also an Admitted Attorney of the High Court of Swaziland. Mr Gumedze has edited the monographs including the Elimination of Mercenarism in Africa: A Need for a New Continental Approach, ISS Monograph (2008) and Regulation of the Private Security Sector in Africa: Manifestation, Challenges and Regulation ISS Monograph (2007). Some of his published articles include The Privatisation and Regulation of Security in Africa in L le Roux South African Army Vision 2020 Vol. 2: The South African Army Relevant and Ready for Future Security Challenges in Africa (2008) 197 3

5 and The Controversy Around Private Security Companies and Mercenaries in Africa 2008 Issue 2 South African Army Journal 10. His recent contribution to the subject of privatisation of security is a publication entitled Addressing the Use of Private Security and Military Companies at the International Level, ISS Paper 206, November Dr Shaista Shameem Dr Shaista Shameem is the Chairperson of the UN Working Group on the use of mercenaries as a means of impeding the exercise of peoples to human rights and self-determination. She was elected to this position in 2009 and has played a significant role in the drafting of a new international convention on Private Security and Military Companies contracted to UN member states. She graduated with a PhD from the University of Waikato in 1990 and has had extensive teaching, journalistic and legal experience. Her most recent academic appointment is as an Associate Professor of Law at the University of Fiji. Prof Shameem is a trained journalist, has a Filmmakers Certificate and is a trained, and successful barrister and solicitor. An ardent campaigner and defender of Human Rights, Prof Shameem has also written several books and articles throughout her career, including: New Impulses in the Interaction of Law and Religion: The Fiji Human Rights Commission in Context Brigham Young University Law Review She recently completed an article on Third Country Nationals in the Private Security and Military Sector to be published in the IPOA Journal. Prof Laurence Juma Prof Laurence Juma is an Associate Professor of Law at Rhodes University where he teaches Public International Law, Customary Law and Introduction to Law courses. Prof. Juma holds an LLB degree from Nairobi University, LLM from University of Pennsylvania, and MA in Peace studies from Notre Dame University. Currently, his research engagements are in the fields of African customary law, human rights law and laws of armed conflict. Prof. Juma has published extensively on these fields and also presented papers at local and international conferences. He presented a paper at the Roundtable Meeting of Experts on the study of Private Military/Security Companies organized by the Institute for Security Studies (ISS), in Pretoria (June, 2009) and at the 12th International Association of the Study of Forced Migration (IASFM) Conference in Nicosia, Cyprus (July, 2009). Prof. Juma serves in the Editorial Board of Speculum Juris and is also a member of the Network of University Teachers of International Humanitarian Law (IHL) in Southern Africa and Indian Ocean Region. 4

6 Dr. Shameem, H.E Ambassador Levesque, Mr. Gumedze and Prof. Juma (from left to right) The Role of the United Nations Working Group on Mercenaries in Addressing Private Military and Security Companies Mr Sabelo Gumedze, Senior Researcher at the ISS, made the presentation on the diverse roles and challenges of PMSCs in Africa. He discussed the concept of privatization of security, the diverse roles of PMSCs, the challenges posed by PMSCs in Africa and the strategies to address these challenges. Mr. Gumedze stated that PMSCs were involved in African conflicts (for example in Sierra Leone, Angola and Sudan), in peacekeeping missions (for example in Sudan, Liberia and Cote d Ivoire), offer humanitarian assistance (for example in Cote d Ivoire, Somalia and Sudan), undertake the Security Sector Reform (SSR) and engage in the extractive industry (in Sierra Leone). Mr Gumedze noted that the concept of privatisation of security is complex and engulfed with many critical questions such as the following: - What is the rationale for privatising security? What security services should be privatised? How far should a State go in privatising security? He pointed out that the concept is further complicated by the notion of inherent state functions. It is still not so clear cut as which functions are consistent with the principle of state monopoly on the legitimate use of force. Further it is not clear which functions can and cannot be delegated to PMSCs. The question that Mr Gumedze posed was whether there could be a universally acceptable standard for what could be defined as inherent state functions. He stated that privatisation of security manifests in the different forms and names such as the following: - Private Security Companies (PSCs); Private 5

7 Military Companies (PMCs); Private Military/Security Companies (PMSCs); and sometimes the so-called Contingency Contractors. In discussing the challenges posed by the PMSCs in Africa, Mr Gumedze noted that African countries (such as South Africa, Namibia and Uganda) are becoming a recruitment ground for PMSCs. Mr Gumedze perceptively indicated the need for an effective regulatory regime for PMSCs which requires an interlocking framework of national, regional and international control mechanisms. It was mentioned that only very few states like South Africa, Sierra Leone and Democratic Republic of Congo have regulatory frameworks. Though, there is a lack of agreed upon framework to deal with the PMSCs in Africa, there are a few attempts at international level such as UN Draft International Convention on Private Military and Security Companies and the Montreux Document. Mr Gumedze concluded his presentation by forwarding critical questions on whether African States afford to allow: - PMSCs to engage in inherent state functions; their citizens to be recruited by PMSCs to provide military/security services abroad; to contract PMSCs which violate human rights and international humanitarian law; PMSCs to operate within their territories without any regulations; their Security Forces to be trained by PMSCs; and PMSCs to champion their Security Sector Reform (SSR) Programmes. The Role of the United Nations Working Group on Mercenaries in Addressing Private Military and Security Companies Dr Shaista Shameem, Chairperson-Rapporteur of the UN Working Group on the use of Mercenaries made her presentation on the Role of UN Working Groups on mercenaries in addressing PMSCs. Dr. Shameem started her presentation by saying a few words on the mandate and activities on the Working Groups on the use of mercenaries. She noted that the Working Group was established in July 2005 and succeeded and superseded the mandate of the Special Rapporteur, which had been in existence since The main concern of the Group is to protect the human rights and the rights of people to selfdetermination in Africa. The Working Group considered that the initial step required to regulate effectively the activities of PMSCs and their employees was to establish concrete legal standards that would define a juridical framework for the activities of PMSCs. Dr Shameem noted that the Montreux Document, a non binding text containing rules and good practices relating to PMSCs, is a very useful document as it identifies the existing obligations of States and PMSC and their personnel under international humanitarian and human rights law and provide description of some good practices. She explained that the Working Group welcomes these initiatives in particular as they involved those countries that are the most important contractors of PMSCs. However, the Group believes that they are not sufficient. In fact, the Group is convinced that to be effective, the activities of PMScS should be regulate legally and monitored effectively both at the national and international level, for example, by the UN. 6

8 She cited some unfortunate examples in the last few years, which have shown how PMSCs used excessive force and commit human rights abuse. Sadly, only a few of theses PMSCs have been prosecuted and punished for their crimes. She said that the Working Group recommended in its reports to the Human Rights Council and the General Assembly that a new international legal instrument in the format of a new convention on PMSCs be elaborated and adopted by the UN in order to bring the PMSCs fully out of the legal grey zone. Accepting the recommendation of the Group, the Human Right Council requested the Working Group to consult with the NGOs, international experts and intergovernmental organizations on the content and scope of the proposed convention. Dr Shameem noted that the Group had completed its consultation with four regional groups throughout the world. The recent consultation with 25 African States had just been completed in Addis Ababa. She finally noted that there is an internationally consensus for effective and additional oversight and monitoring of the PMSCs. Attempts at national, regional and international level to have a legal framework should be mutually complementary and enforce each other and will create a more regulated and accountable PMSCs. The Role of the African Union in Addressing the Use and Misuse of Private Military and Security Companies in Africa Prof Laurence Juma, Associate Professor of Law at Rhodes University, South Africa made a presentation on the Role of African Union in addressing the use and misuse of PMSCs in Africa. He discussed on the benefits of collective approaches and responses to security issues in Africa and on regulating the PMSCs. He said that we Africans have a certain legitimate expectation that we should and can be protected by the AU. The reason why we have a belief in AU to regulate the PMSCs is emanated from two major reasons. First, the AU was established to create and strengthen peace, prevent and resolve conflicts in the continent. Secondly, as a major consumer or clients of the PMSCs, African states and AU need to regulate the activities of the PMSCs. He noted that the weak governance nature of the African states, divergent national interests, the issues of dependence, the transnational nature of the PMSCs and the likes are the main problems for not having standardized framework to regulate the PMSCs. He noted that some of the Africa countries even if they are not in conflicts, cannot provide security for their citizens. The cases in points are Johannesburg and Nairobi. This makes the role of the PMSCs priceless. Prof Juma stressed on the need for having a frank and sustains debate on the issues of PMSCs. He noted that the lack of debates in Africa could be as a result of the relationship between the PMSCs and Mercenaries. It is clear that most people in Africa are not in good terms with the word mercenaries and this makes the discourse on the issue overlooked for quite some time. He added that the lack of debate coupled with the secrecy nature of PMSCs made the normative development and establishment of regulatory framework with regard to privatizing military very difficult. This, in turn, makes reaching at consensus 7

9 impossible among the African countries in dealing with PMSCs. In discussing what the AU should do, Prof Juma suggested that apart form instigating debate, spearheading the normative development in the field and crafting a regulatory framework, AU has to make its presence felt at international level such as in the UN Working Group. Secondly, it should revise the Mercenary Convention or come up with the new Convention. Third, preparing guidelines for monitoring the PMSCs activities or set up the code of conduct for operating in Africa. Fourth, data sharing arrangement to know who is working where and what are they are doing. Fifth, it would be appreciable if it is possible to have a quality assurance mechanism. He also mentioned the need to work with the regional organizations such as SADC and ECOWAS and other epistemic communities like NGOs, CSOs and other stakeholders. Discussions After the above presentations, the floor was opened for questions, comments and discussions. What came out clearly during the discussions was the thorny issue of vulnerability of African States on the use of force. It was very apparent that African States and the African had to take stock in assessing whether or not they were becoming more vulnerable as a result of the ever-growing and unprecedented use of PMSCs. The mere existence of PMSCs by African States and the African Union was a clear case of their power being eroded, as they were no longer having monopoly on the use of force. What was also of interest was that since under international law, one of the characteristics of the State is the monopoly on the use of force, it therefore followed that by outsourcing the use of force, States where no longer intending to be States in the true sense of the word. Another issue that also came out from the discussions was the philosophical concept of social contract, which was seemingly being challenged by the use of PMSCs by States. The argument was that the mandate for the use PMSCs by States was in violation to the social contract, which came into being as a way of addressing the state of nature which was characterised by anarchy. Indeed, if the social contract seems to be violated by the use of PMSCs, the question was: could the use of PMSCs by States be taking us back to the state of nature, which was posited by the 17 th century English philosopher, Thomas Hobbes? After the discussions, Her Excellency Ambassador Michèle Lévesque, made closing remarks, thanking the speakers and the participants for honouring the seminar invitation and engaging in the PMSCs debate. 8

10 The Privatization of Security Implications for the African Union and African States March 5, 2010, at the Hilton Hotel Conference Room Addis Ababa, Ethiopia S/N Name Organization 1 Leroy Antoine French Embassy 2 Befekadu Tolera Beza Integrated SS PLC 3 Michela Gaudiello Italian Embassy 4 Brian Bauman US Embassy 5 Alex Mackenzie Smith UN 6 Konjit Seyoum Interpreter 7 Shiferaw Degefa Private 8 Getachew Teshome MoFA 9 Lt. Col. Pl Lebele Botswana Embassy 10 Muna Abdalla Institute for Security Studies 11 Allalay Jacques INTACT 12 Laurence Juma Rhodes University 13 Laurence Liu UN 14 Asterd V.Dongen NLD Embassy 15 Mohammed Abdella Arab League 16 Wondwossen Michago Institute for Security Studies 17 Col. Posa Stemere Lesotho Embassy 18 Mahlet Shewangezaw ILSRI 19 Liyuwork Amare Women s & Children s Affair 20 Tewodros Dawit Private 21 Yewelsew Shitie Private 22 Eyasu Gizaw Japan Embassy 23 Mohammed Hassan Babiker Sudan Embassy 24 Deddi Komhaui Embassy of Togo 25 Desalegn Tadesse ICRC: Delegation to AU 26 M.Levesque Canada Embassy 27 Haleluyah Lule Institute for Security Studies 28 Debay Tadesse Institute for Security Studies 29 Bisrat teshome AAU 30 Maereg G. Egziabeher University of Western Cape 31 Daisuke Abe Japan Embassy 32 Djouani Mokarahe Algeria Embassy 33 Mulusew Libsework MoFA 34 Yohanness Mesfin AAU/IPSS 35 Flemming Johansen DA Embassy 36 Alcalay Ivana Faculty of Political Science 37 Adjetey Annan Ghana Embassy 38 Timothy Baines EU Delegation to AU 39 Julie Tehard OHCHR 40 K.K.Amoah UNAMID 41 Brenda Mofya FES 42 Mohamed Khabd Morocco Embassy 43 Guillaume Nseke OIF 44 Sabelo Gumedze Institute for Security Studies 45 Tim Murithi Institute for Security Studies 46 Berouk Mesfin Institute for Security Studies 9

11 ISS Public Seminar: THE PRIVATIZATION OF SECURITY: IMPLICATIONS FOR THE AFRICAN UNION AND AFRICAN STATES Hilton, Addis Ababa, Ethiopia Programme Friday, March 5, :00 09:30 Arrivals - Tea & Coffee 09:30 09:45 Welcoming Remarks by Dr. Tim Murithi, Head, Peace and Security Report Programme, Institute for Security Studies 09:45 10:00 Introductory Remarks by Chair, H.E. Ambassador Michèle Lévesque, Ambassador of Canada to the Federal Democratic Republic of Ethiopia 10:00 10:30 The Diverse Roles and Challenges of Private Military and Security Companies in Africa Mr. Sabelo Gumedze, Senior Researcher, Institute for Security Studies 10:30 11:00 The Role of the United Nations Working Group on Mercenaries in Addressing Private Military and Security Companies Ms. Shaista Shameem, Chairperson-Rapporteur of the United Nations Working Group on the use of Mercenaries 11:00 11:30 The Role of the African Union in Addressing the Use and Misuse of Private Military and Security Companies in Africa Mr. Laurence Juma, Associate Professor of Law 11:30 12:00 Discussions 12:00 12:10 Closing Remarks by Chair, H.E. Ambassador Michèle Lévesque, Ambassador of Canada to the Federal Democratic Republic of Ethiopia 12:10 Lunch Please note that discussions occur under Chatham House rules, which means no attribution without specific permission. 10