E. PMSCs and Plan Colombia

47. The Working Group was informed by NGOs of the so-called “Plan Colombia”, which includes spraying activities which are carried out by PMSCs to combat narcotics cultivation, production and trade along the northern border zone of Ecuador and southern Colombia. The Working Group was informed of actions taken by the authorities of Ecuador with regard to the spraying activities and of their effects. In this regard, in meeting with the Ombudsperson of Ecuador, the Working Group notes and welcomes resolution No. DAP-001-2004, of the Ombudsperson, and resolution No. R-25-132 of the National Congress, exhorting the President of the Republic to “request and commit by means of the subscription of the agreement corresponding to their Colombian counter-parts, so that, in case new spraying is carried out, this is carried out from within Colombia, at least 10 km from the border with Ecuador, to guarantee the avoidance of further border contamination” (translated from Spanish).[31]

48. The Working Group received information that from 1991, the United States Department of State contracted the private company DynCorp to supply services for this air spraying programme against narcotics in the Andean region. In accordance with the subscribed contract of 30 January 1998, DynCorp provides the essential logistics to the anti-drug Office of activities of Colombia, in conformity with three main objectives: eradication of cultivations of illicit drugs, training of the army and of personnel of the country, and dismantling of illicit drug laboratories and illicit drug-trafficking networks. According to one public account: “DynCorp works directly with the United States military, with the Anti-Drug Directory of the police of Colombia and with the brigade against drugs of the Colombian Army … activities that International DynCorp has taken under the contract, were agreed and in connection with the precise specifications of the Office”.[32]

49. During its visit to Ecuador, the Working Group received information from NGOs on the consequences of the spraying carried out within the Plan Colombia had on persons living in the frontier region.[33] An NGO report indicated that one third of the 47 women in the study exposed to the spraying showed cells with some genetic damage.[34] This investigation was undertaken in 2003, and demonstrates that when the population is subjected to fumigations “the risk of cellular damage can increase and that, once permanent, the cases of cancerous mutations and important embryonic alterations are increased that prompt among other possibilities the rise in abortions in the area”.[35]

50. An NGO in Ecuador provided the Working Group with a copy of the demand of class action submitted before a court of the District of Columbia in the United States by a group of Ecuadorian citizens, representing approximately 10,000 persons, against DynCorp (DynCorp Aerospace, DynCorp Technical Services, and International DynCorp). This complaint concerned the spraying with toxic herbicides in Colombian territory between January and February 2001 less than a mile from their homes in Ecuador.[36] The Working Group is informed that the case was dismissed by the Court of the District of Columbia in the United States. While therefore not commenting on the allegations made and further analysing the case, the Working Group refers to this case for the sole reason that one argument presented by DynCorp before the Court offers a useful insight, and exemplifies the necessity of legislation at the national and international levels regarding PSMCs as non-State actors exercising military or security functions. In the proceedings, DynCorp alleges that the demand should be rejected in its entirety for the following, among other, reasons:

(a) The demand looks to impose responsibilities on the behaviour of DynCorp, specifically authorized by the United States Congress and as elaborated by the United States Department of State;[37] and

(b) In reference to the claim of the plaintiffs under the ATCA and TPVA of the federal Law, DynCorp “emphasizes that it is necessary to keep in mind that the ATCA and the TVPA don’t cover the behavior of the private corporations” (italics added).[38]

51. The Working Group considers the last point raised by DynCorp imply that some States could be hiring PMSCs in order to avoid direct legal responsibilities. This legal loophole of PMSCs as non-State actors is of concern to the international community, as expressed in the resolution establishing the Working Group, and highlights the need to prepare international basic principles to ensure that private companies promote the respect of the human rights in their activities.[39] The Ministry of Defence points out that the Joint Command of the Armed Forces, pursuant to the Act governing the manufacture, import and export, sale and possession of weapons, munitions, explosives and accessories, carries out legally specified measures through the Weapons Control Department of the Command’s Logistics Directorate, including the public registration of private security firms and their representatives.

IV. CONCLUSIONS

52. As for specific conclusions of their visit to Ecuador, the Working Group:

(a) Expresses its appreciation to the Government of Ecuador for the speedy invitation and cooperation to undertake the visit, which was consistent with the country’s standing invitation to all special procedures mandates and its current membership in the Human Rights Council;

(b) Recognizes the efforts carried out by the Government and the Ecuadorian State on the regulation of the PMSC through legislation and regulation of the 2003 Private Security Companies and the 2005 Law on Subcontracting;

(c) Notes the immunity conferred to certain PMSCs in Ecuador, as in the case of DynCorp and their employees, with the consequence of placing them in a grey field of the legislation. In enjoying immunity, and while not constituting officials of either Ecuador or the United States, PMSCs and their employees can evade responsibility for human rights violations;

(d) Notes the situation in Guayaquil, where municipal authorities have subcontracted private security firms as a temporary measure until sufficient numbers of national police officials had been recruited and trained to meet law enforcement requirements. The Working Group invites further study and evaluation of this experience, while submitting its opinion that such privatizing of public security should be temporarily and closely monitored, and preferably avoided altogether;

(e) Notes its concern of the perception which seems to be growing among the population of security and justice being linked to private means, rather than functions ensured by State authorities. This would appear to reflect the saying: only those who can pay for it have security.

V. RECOMMENDATIONS

53.In concluding its visit to Ecuador, the Working Group therefore:

(a) Calls for the swift accession by Ecuador to the International Convention against the Recruitment, Use, Financing and Training of Mercenaries. The Working Group notes with appreciation the positive indications from the National Congress and the Ministry of External Relations that steps are being taken in this direction;

B) Emphasizes the need for rigorous national legislation, to regulate and monitor the activities of national and transnational PMSCs, in order to ensure the responsibilities of the State to effectively protect and promote human rights. In this regard, the National Congress is encouraged to enact law No. 24804 to prohibit the recruitment, use, financing and training of mercenaries, submitted on 17 August 2005 by a Member of Parliament. An alternative approach would be to establish acts committed by mercenaries as well as mercenary-related activities as an offence in the Criminal Code.

(c) Urges the Ecuadorian authorities, especially to the Public Ministry and the General Fiscal Minister of the State, to complete promptly the investigations surrounding the PMSC Epi Security and Investigations in Manta, which offered to recruit Ecuadorian and foreign nationals for security work in Iraq. The Working Group encourages appropriate follow-up action on the basis of these investigations, and invites the authorities to share the conclusions and results thereof openly with civil society;

(d) Takes note of resolutions DAP-001-204 of the Ecuadorian Ombudsman and R-25-132 of the National Congress and urges the competent authorities to accept the resolutions emanated by these organs regarding the consequences of the spraying in the north frontier of Ecuador;

(e) While recognizing the Government’s efforts and those of other organs of the Ecuadorian State to adopt measures and to establish the necessary legislation for the regulation of this sector, the Working Group notes with concern the advance of a trend and the appearance of new modalities in private security. The Working Group calls upon the authorities to be vigilant and alerts the State about the necessity to ensure that the Juntas de Defensa del Campesinado do not become paramilitary actors;

F) Considers that the lack of complaints filed regarding the activities of PMSCs in Ecuador demonstrates the limited knowledge by the population about human rights procedures. In this sense, the Working Group invites Ecuador to pursue measures, in line with articles 3 and 16 of the National Constitution, relating to: (a) the defence, promotion and protection of the rights of Ecuadorians; and (b) the plans provided for in the Political Constitution of Ecuador, in particular the National Human Rights Programme, issued under Executive Decree No. 1527 of 24 June 1998, aimed at fostering human rights education for diverse sectors of the society in schools, jails, among vulnerable populations and minorities, and to include among them the staff of private military and security companies, so that these rights are recognized and demanded by the population.

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[1] For the purposes of this report, and while recognizing the definitional challenges, the Working Group refers to private military and private security companies (PMSCs) as companies which perform all kinds of security assistance, training, provision and consulting services, i.e. from unarmed logistical support to armed guards involved in defensive or offensive military operations.

[2] With a view to undertaking a regional visit, the Working Group decided at its meeting in February 2006 to request invitations to visit Chile, Colombia, Ecuador, Honduras and Peru (Report of the Working Group, E/CN.4/2006/11/Add.1, para. 23).

[3] The mandate of the Working Group includes “[t]o 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”, pursuant to Commission on Human Rights resolution 2005/2, para. 12 (e).

[4] Available at http://www.ohchr.org/english/issues/mercenaries/index.htm.

[5] El Tiempo, Guayaquil, 15 August 2003, “Asesor extranjero entrena a policías”.

[6] Diario Expreso, 20 April 2006.

[7] Cf. Diario Expreso, 20 April 2006.

[8] Jijión, Carlos, “Retorno a la ciudad Gótica”, Diario Hoy, Opinión, 6 April 2006.

[9] Cf. Carrión, Fernando, “De la represión a la prevención”, Diario Hoy, Opinión, 15 April 2006.

[10] Neira, Mariana, “Revista Vistazo”, 2 February 2006.

[11] This is based on information submitted by CEDHU, Complaints on defence areas 2003-2005, Quito, Ecuador. Las Juntas de Defensa del Campesinado are peasants' groups that are organized in rural areas to guarantee security and to control thefts of livestock and crops. These groups were organized due to the limited capacity of the National Police in rural areas and their lack of resources. Las Juntas operate in the provinces of Bolivar, Cotopaxi, Chimborazo and Tungurahua in the Sierra and in the Provincia de los Rios by the Coast, and involve approximately 20,000 individuals.

[12] Ibid.

[13] Registro Oficial No. 326, Función ejecutiva Decreto 1505.

[14] Cooperation Agreement between the Republic of Ecuador and the United States Government, Registro Oficial No. 326, Función ejecutiva Decreto 1505.

[15] Ibid., art. II (Literal a, Numeral 1).

[16] Ibid., art. VIII (Numeral 2).

[17] Ibid., art. IX (Numerales 1 a 4).

[18] Ibid., art. VII (Numeral 1).

[19] According to professor Diego Delgado Jara, writing in the Revista Economía y Política, No. 10, Facultad de Ciencias Económicas y Administrativas, the accord is unconstitutional on 10 normative and procedural grounds: three grounds with regard to the National Congress, two grounds relevant to the functions of the Constitutional Court, and on three grounds relevant to the President and the functions of the State.

[20] Diario Hoy, 26 April 2002.

[21] Diario Hoy, 8 May 2002.

[22] Diario Hoy. Sección Política, 1 May 2002. However, the Working Group notes indications of the capacity of some DynCorp employees to engage in direct combat if necessary. This was publicly reported in 2001 when in the course of DynCorp’s logistical operations in Colombia, its employees engaged in direct combat against Colombian rebels to rescue the crew of a helicopter that had been shot down by guerrillas. See Jeremy McDermott, “US Crews Involved in Colombian Battle”, Scotsman, 23 February 2001.

[23] The website www.iraqijobcenter.com has since been closed with the following message: “Due to misusing our service by some individuals we shut down the website for one week to check all postings on our website. Our service will be back soon with new rules to overcome scams and offer good service to our members. Thank you for your visit. IJC Team.” Website visited on 30 August 2006.

[24] See Metro Hoy, Section Al, 16 August 2005; Diario Hoy, Politics, 15 August 2005; Hoy Online, Quito, 15 August 2005; and Diario Hoy, Politics, 17 August 2005.

[25] Report by the National Police of Ecuador, National Directorate of the Criminal Investigation Service, Manta Criminal Investigation Division, on the case of presumed trafficking in persons against Jeffrey Roberth SIPI and Martha Isabel Cañarte Delgad, August 2005.

[26] Diario Hoy, Politics, 7 December 2005.

[27] Ibid.

[28] Ibid.

[29] “El ejército seguirá al servicio de las petroleras” Diario Expreso, 17 February 2006.

[30] Cf. the Kichwa Peoples of the Sarayaku community and its members v. Ecuador, case 167/03, report No. 62/04, Inter-Am. C.H.R., OEA/Ser.L/V/II.122 Doc. 5 rev. 1 at 308 (2004).

[31] Libro Auténtico de Legislación Ecuatoriana, Resolución No. R-25-132 del Congreso Nacional, San Francisco de Quito. 11 March 2004.

[32] Deposition of the former Assistant Secretary of State for International Narcotics and Law Enforcement Affairs, on 27 November 2001, in the case of Venacio Aguasanta Arias, et al., v. Dyncorp, et al., United States District Court for the District of Columbia, case No. 1:01CV01908.

[33] Cf. Maldonado, Adolfo. “Frontera: daños genéticos por las fumigaciones del Plan Colombia. Investigación noviembre de 2002 y primeras reacciones oficiales: Defensoría del Pueblo y Congreso Nacional” Acción Ecológica y Comité Andino de Servicios, March 2004, Quito, Ecuador.

[34] Ibid. “The study establishes the relationship of the air fumigations of the Plan Colombia with damages in the genetic material. 47 women were analysed, 22 in the frontier line, in Ecuador and Colombia where they were exposed by the air fumigations from the Plan Colombia to the ‘glifosato’ mixture with POEA + Cosmuflux 411 F. 100 per cent of women, besides the intoxication symptoms, presented genetic damages in a third of the sanguine cells. In front of them, the group control of 25 women to more than 80 km of the fumigated area, they presented cells with scarce genetic damage; most of the cells are under good conditions.”

[35] Ibid.

[36] Demanda Bajo Acción de Clase. Acta 28 USC-2201. The claimants alleged that they had been subject to serious human rights abuses, “including systematic damages to their people and their properties, tortures and crimes against the humanity, in violation to the Records of Torture to Foreigners (‘ATCA’), 28 U.S.A. #1350, to the Records of Protection to the Victims of Torture (‘TVPA’), 28 U.S.A. #1350 …”.

[37] Submission by DynCorp in the case of Venacio Aguasanta Arias, et al., v. Dyncorp, et al., United States District Court for the District of Columbia, case No. 1:01CV01908.

[38] Ibid.

[39] Cf. Commission on Human Rights resolution 2005/2, para. 12 (e).

Date: 2015-12-24; view: 648