Working Group on the use of mercenaries as a means of violating human rights and impeding the right of peoples to self-determination
On behalf of the Working Group on mercenaries, my colleague Saeed Mokbil and I would like to thank the Government of Austria for the invitation to undertake this visit. We have benefitted greatly from the excellent co-operation we had with all the representatives of the State we met with, and have been able to hold open and frank discussions that were both informative and constructive. I extend our gratitude and thanks to the various representatives of civil society and non-government organizations whom we met. I also acknowledge the kind support we have received from United Nations Information Center here in Vienna.
Our delegation held meetings in the provinces of Vienna, Lower Austria, and Styria, namely in the towns of Garsten, Leoben and Vordernberg. We met with representatives of the Federal Government including the Ministry of Europe, Integration and Foreign Affairs, Ministry of the Interior, Ministry for Constitutional Affairs, Reforms, Deregulation and Justice, Ministry of Defence, Ministry for Digital and Economic Affairs, Federal Chancellery – Department for Families and Youth and also with members of Parliament. We also met with members of the Ombudsman’s office.
We appreciate the opportunity to have met confidentially with prisoners at Garsten Prison and detainees at the Vordernberg immigration detention facility.
Focus of the visit
The Working Group is mandated by the United Nations Human Rights Council to study, report, and make recommendations on mercenarism andmercenary-related activities and their impact on human rights, particularly the right to self-determination. In this context, we have devoted much attention to assessing the link between mercenaries and foreign fighters, in relation to motivational factors (particularly economic and financial gains or incentives), recruitment practices and the human rights impact of these actors. We are also mandated to cover the human rights impact of use of private military and security companies (PMSCs). The Working Group studies the regulatory framework governing this industry, both nationally and at the international level. In 2017, the Working Group presented a report to the General Assembly (A/72/286)1 which focused on the use of private military and security companies in places of deprivation of liberty and the impact of this on human rights, particularly the rights of prisoners and detainees.
The visit to Austria provided the opportunity to assess the regulation and use of private security companies in general and in the Vordernberg detention facility, and to closely study the foreign fighter phenomenon and the diverse motivational factors that prompt these actors to travel to conflict zones such as Iraq and Syria.
Austria has ratified the majority of the core international human rights conventions. It has rightly been referred to by many as beacon of democracy and the rule of law with its Constitution and various laws providing strong protection for fundamental human rights. Our interlocutors, both from government and from civil society, repeatedly affirmed the independence of the judiciary and the delegation met with representatives of various institutions whose functions include ensuring that the human rights obligations of the State are respected.
With regard to private military and security companies, Austria provides a positive example in that it has not fallen into the trend of contracting PMSCs, domestically and abroad for core government functions such as military services and operation of prisons. We were gratified to see that there are constitutional prohibitions against such outsourcing and thus there were no specific concerns relating to such operations. Private security companies in Austria primarily carry out functions such as the guarding of events and public and private institutions.
The Vordernberg immigration facility is the only one of its kind in Austria, a pilot project where the government (the Ministry of Interior) and the private security company G4S have entered into a contract to provide specific services to the facility and its detainees. The Working Group notes that there are positive aspects of the arrangement between the government and G4S. Primarily, and of importance to the Working Group, is that G4S is involved solely in administrative matters and services to the detainees such as accompanying them to appointments, organizing their leisure activities, providing food and maintaining the compound. The G4S staff do not have the same powers as the police officers that guard the premises. In the interviews with detainees, many indicated that they had good relationships with G4S, in comparison to the police. The delegation witnessed this first-hand and much of this can be linked to the specific functions required of G4S which do not involve making decisions that negatively impact detainees. The G4S staff are also not allowed to use force in carrying out their daily functions.
With regard to the foreign fighter phenomenon, the Working Group notes that the government has engaged in multiple strategies, engagements and fora, nationally, regionally and internationally to address this challenge. The aims of de-radicalisation, and of countering and preventing violent extremism are an essential response to the threats and attacks that have happened throughout Europe, and the recruitment of mostly young people to join armed groups abroad, such as Da’esh. Austria, at one point, was one of the top five countries in Europe with the highest number per capita of nationals travelling to conflict zones such as Iraq and Syria.
The Working Group commends the priority placed on the foreign fighter phenomenon which engages not only the security sectors of the State but also, a network of civil society and non-government organizations that contribute valuably to the process of deradicalisation and prevention of violent extremism. Some of these actors are from local communities and include religious experts, social workers, counsellors, academics and non-government groups. Other positive initiatives include the establishment of a center on extremism and a 24 hour helpline where any member of the community can contact social workers and counsellors to answer questions or discuss issues related to violent extremism and radicalisation. The delegation also noted positive initiatives such as DERAD, the work of the Radicalisation Awareness Network, Not In God’s Name (NIGN) and BOJA2 to name a few. These can play important roles in preventing violent extremism and radicalisation that often leads to individuals travelling abroad to conflicts like Iraq and Syria. The government’s support of, and engagement with these initiatives that perform a preventive function is certainly more important than punitive measures taken after the fact of radicalization and its unlawful consequences.
The Working Group held an open and constructive dialogue with government representatives where it raised certain issues of concern from its findings.
Concerning PMSCs, or specifically, PSCs, the Working Group noted that there is no specific and comprehensive legislative or other regulation of this industry. While acknowledging that currently, Austria does not have significant problems with the growth in this industry, the Working Group raised the need to establish clear regulations to offset any potential problems including human rights abuses at the hands of these companies. Currently, there are around 700 private security companies in the country, many of which are small-scale operations that include object guarding and detective services.
The licensing and registration of private security companies in Austria falls within the competence of the Ministry of Trade and Economic Affairs and the Ministry of Interior oversees certain aspects including the vetting of company personnel. With the piloting of the use of a multinational PSC in Vordernberg, the Working Group notes that this is even more of a reason to establish national regulation to effectively address trans-border activities by such companies, to define clearly permissible and prohibited activities including the use of force, to address classification of arms and the conditions in which these can be used, to strengthen oversight of such companies by regularizing the conduct of inspections of company activities, and importantly, to strengthen accountability and remedy frameworks where PSC personnel commit criminal offences and human rights abuses. Private security companies are growing in size and power in the international arena and they have been known to commit human rights abuses around the world. Strong and centralised regulation is essential.
In its visit to Vordernberg, the Working Group notes many reports of positive practices in this facility – namely that the G4S personnel generally have good relationships with detainees and perform valuable functions. The centre was built in 2014 - an impressive modern facility. However, the delegation noted some concerns raised by detainees we met.
One of the prominent complaints received was that detainees were being billed a fee of 70 euros per day. Official documents confirmed that this was being done and a discussion with authorities did not dispute this practice. Some of the bills we were shown by detainees were in excess of 2,000 euros. This system of charging detainees for their involuntary detention is not only unusual but disregards the indigent state and already vulnerable and difficult situation these detainees were in. We were informed that these charges would be waived if the detainee could not pay them. However, if a detainee did have sufficient funds on arrival, the charges would be taken directly from his account. There was no real clarity on why this practice was carried out but there seemed to be a legal basis for this as explained by the authorities. Further, we were informed that if a detainee was deported and was to re-enter Austria at a later date, then the fee owing in this context had to be paid before re-entry could be possible.
Detainees also complained that the money they arrived with was taken from them and they were not given a receipt or information on whether they would eventually get the money back. The authorities at the centre informed that these funds were provided to detainees at the rate of 50 to 60 euros per week through a pre-paid card that the detainee could use at the kiosk at the centre.
The delegation observed that in general, detainees at the centre were not aware or were confused as to how to channel their complaints to the authorities or to G4S. Several said that they were often dismissed and their concerns were not taken seriously, or that they were threatened with reprisal if they persisted in their complaints. They were not fully informed of their status and were anxious about the indefinite duration of their stay in the facility. Some had been in the centre for a few days, some for several weeks and others for months. Some of the detainees were clearly in need of psycho-social care and although the center has been heralded as a good model of an open regime with better conditions and treatment than other centres of its kind, the use of sanctions against detainees, lack of contact with family and lawyers and the possible use of solitary confinement were concerning. The Working Group understood that NGOs provided legal advice to the detainees but some complained that legal support was inadequate. Many detainees stated that Austria was not their destination, but merely a transit point in which they were arrested and detained awaiting deportation and that their destination points were elsewhere in the region. Their main concern and source of anxiety was to be freed from what they referred to as “prison” and be reunited with family members.
While no significant complaints were expressed against G4S in Vordernberg, the Working Group cautions against the expansion of the scope of outsourcing of government functions to PSCs, with careful consideration given to human rights implications involved in such practices.
From 2012, information began to emerge of individuals travelling to join groups like Da’esh and Al Nusra in Syria. According to statistics from the Ministry of Interior, an estimated 317 persons tried to travel to Iraq and Syria, around 60 were intercepted and prevented from leaving the country, 93 returned from the conflict zones and there are no definitive or verified figures of how many of these people have been killed in conflict. Many of those that were intercepted are either in prison or in the criminal justice system, mainly charged or convicted under article 278 of the Criminal Code, the anti-terrorist law. Since 2016, the number of those travelling to engage in conflict has declined significantly and currently, there aren’t any known individuals attempting to travel. The military suppression of Da’esh has likely led to the decrease in the numbers.
Motivation and recruitment
There appears to be no standard profile of a foreign fighter. Rather, there are diverse factors that motivate different individuals to travel to conflict zones. Some of the main reasons include ideology, religious convictions, search for identity and a sense of belonging, adventure and also economic and financial gain.
Although the Working Group was informed that ideology was a leading motivation, some interlocutors said that money was also promised or provided to the foreign fighter or to his/her family. In one case a person’s family received a payment of 4,000 euros because the individual had gone to Syria. Recruits were promised salaries and in some cases, even houses and cars. Often it would be combination of financial and the other factors that prompted foreign fighters to go to Syria.
Though most fighters were men, women also travelled mainly to join husbands or friends. Young girls travelled to also become brides to Da’esh or Al Nusra members. Some families travelled together, hence children were caught in this phenomenon.
A particular feature of the foreign fighter phenomenon in Austria is that around 50% of fighters were of Chechen origin. While many said that some of these men were radicalised to join Da’esh or such groups, others also pointed to the fact that quite a number of Chechens saw the war in Syria as an extension of the war between the Russian Federation and Chechnya, and so joined the conflict for this purpose. There is also a large Chechen diaspora in Austria and nationals of the Balkan countries with refugee status. A lot of fighters, of the older generation, were said to be affected also by the wars they had experienced in their countries of origins. Other fighters that travelled from Austria included, Serbs, Afghans, Bosnians, Turks, Kurds, and Russians. Austrian nationals were also in this group.
In the discussion on motivation, it was clear that a number of individuals who became radicalised had suffered discrimination, racism and felt marginalised in the community. This prompted a lot of discussion about the need for better integration, social cohesion and attention to the specific circumstances of foreign fighter that caused radicalisation. The Working Group learned that in many successful cases of de-radicalization, the individual expressed victimization through racism, poverty, lack of opportunity, social and societal rejection and mental health issues. This highlights the need to address the root causes of radicalisation and violent extremism and not focus exclusively on symptoms. The Working Group commends the engagement and active involvement of social actors in the network against radicalisation and violent extremism and emphasizes the need to ensure a human rights-based approach to tackling the root causes mentioned.
With regard to recruitment, while mosques are commonly suspected as a major locus of recruitment, a number of foreign fighters were recruited directly in public places including parks, sport centers, local neighbourhoods while others were through online platforms.
Laws and policies relating to foreign fighters
A number of laws and measures have been implemented by the authorities to tackle the phenomenon of foreign fighters. These include an action plan on radicalisation in prison, a strategy on tackling radicalisation and violent extremism involving a network of actors from various sectors in government and from non-government circles, and a policy on integration aimed at promoting social cohesion for migrants and foreigners.
With regard to legislation, a majority of those currently in prison for travelling to Syria have been convicted under article 278(b). Depending on how it is interpreted, it can also cover a person who is merely posting a message on social media sympathising with the aims of groups like Da’esh. The law’s breadth can lead to criminalization of mere beliefs and to discriminatory enforcement. We also caution that excessive emphasis on law enforcement not only favors symptoms over causes, but may also lead to further stigmatisation of migrants and foreigners.
Discussions in Austria, including the incorporation in the government’s national programme3 of the need to combat what is referred to as “political Islam” raises some concerns. All religions have political elements, however in the national programme, Islam appears to be singled out.
The use of vague terms and concepts like “political Islam” may breed further discrimination and violations of the rights to freedom of expression, association and political activity that may further alienate those susceptible to radicalisation. It is right to criticise and fight against criminal activities and extremist organizations that invoke Islam such as Da’esh. However, this cannot be used to stigmatise Muslims or deny their rights to practice their religion either individually or in community with others, and in public or private as stated in article 18 of the International Covenant on Civil and Political Rights.
Even the measures on integration raise some concerns. A policy that disadvantages migrants and foreigners who fail to cooperate with integration programs by denying them social benefits may be morally attractive and effective in many cases, but also counterproductive in other cases. The Working Group notes that in spite of the many positive facets of initiatives aimed at improving social cohesion and reducing radicalisation and violent extremism, some of these measures, if not implemented with due respect to non-discriminatory human rights standards, can actually lead to further marginalization and radicalisation.
Human rights and human security are mutually reinforcing. Without rights, there is no security. Without security, there are no rights. Human rights are centered on the notion of human dignity. Everyone wants and deserves it. Discrimination, such as that reflected in laws and policies that distinguish and prejudice a single religion or ethnic group, can actually result in increasing insecurity rather than eliminating it.
Several interlocutors noted that the State appears more interested in attacking the manifestations of radical Islam than the causes of alienation that have led to radicalisation and violent extremism. Further, that there has been excessive interest in criminalizing adherence to certain religious beliefs than in addressing the causes of extremism.
Austria has tremendously talented people and dedicated resources available to counter the threat of violent extremism and to address the risks created by increasing use of PMSCs. Here are some preliminary recommendations that the government may consider:
- Consider legislation dedicated to the regulation of PMSCs,
- Consider membership in the International Code of Conduct Association for Private Military and Security Providers,
- Consider support for negotiation of binding international regulation of PMSCs,
- Consider accession to the International Convention on Mercenaries
- We encourage the adoption of the strategy on de-radicalisation and preventing violent extremism, and the multi-sectoral approach. We further stress the importance of having an approach that is not focused excessively on law enforcement but also on social needs that are currently being addressed by child services, social and health care services, prison and probation related services, schools and so forth.
- Good practice models including the multi-agency approach on de-radicalisation should be supported, including with funding, to ensure sustainability.
- Ensure the laws and policies addressing the foreign fighter phenomenon align with international human rights standards.
- Ensure that integration policy aligns with international human rights standards to promote social cohesion and not further marginalisation.
- Deprivation of liberty of irregular or undocumented migrants, including those in Vordernberg, should be for the shortest duration possible. Detention of migrants on the ground of their irregular status should not be punitive in nature. The use of sanctions like solitary confinement should be reviewed.
2 This is a center that focuses on youth work (Bundesweites Netzwerk Offene Judgendarbeit).