Antoine Perret

The Role of the Inter-American System of Human Rights in the Regulation of Private Military and Security Companies (PMSCs) in Latin America Antoine Perret Thesis submitted for assessment with a view to obtaining the degree of Doctor of Laws of the European University Institute Florence, 8 December 2014 European University Institute Department of Law The Role of the Inter-American System of Human Rights in the Regulation of Private Military and Security Companies (PMSCs) in Latin America Antoine Perret Thesis submitted for assessment with a view to obtaining the degree of Doctor of Laws of the European University Institute Examining Board Professor Francesco Francioni, European University Institute (Supervisor) Professor Nehal Butha, European University Institute Professor Andrew Clapham, Graduate Institute of International and Development Studies Professor Jorge E. Viñuales, University of Cambridge © Antoine Perret, 2014 No part of this thesis may be copied, reproduced or transmitted without prior permission of the author This thesis has been submitted for language correction. i Thesis summary: The use of private military and security companies (PMSCs) is a growing phenomenon in Latin America and the Caribbean, where complex situations are common. Even though the use of PMSCs is not per se problematic, the lack of an efficient international and national regulatory framework for PMSCs raises several concerns about the protection of human rights. This study aims first to analyze PMSCs’ activities and regulation thereof in conditions in which there is a mix of several types of situation, such as armed conflict and criminal activities or post-disaster and post-conflict. This complexity challenges the identification of the law applicable—international humanitarian law or/and international human rights law— and, thus, challenges the enforcement of any adequate regulation for PMSCs. Three case studies—Colombia, Mexico, and Haiti—illustrate these issues. In Colombia, a non- international armed conflict has been ongoing for approximately fifty years alongside criminal activities linked to drug trafficking. In Mexico, the War on Drugs has escalated to a situation technically classifiable as an armed conflict. Finally, in Haiti, the situation evolved from an armed conflict (2004-2007), to a situation of peace with a high criminal rate before the earthquake (2007-2010), to a post-earthquake disaster situation in which criminality is rising but the intensity of the violence has not reached the level to be classified an armed conflict (2010-present). In order to implement international standards concerning PMSC regulation it is necessary to consider both bodies of law and force territorial states to assume their responsibilities. Considering these elements I then argue that the Inter-American System of Human Rights can play a significant role in improving PMSCs’ regulation in Latin America and the Caribbean thanks to is avant-gardiste features. Its jurisprudence on non-state actors coupled with its use of external sources to interpret the American Convention on Human Rights would allow the implementation of international norms, including international initiatives on PMSCs, in the region. ii iii Acknowledgments The act of writing these acknowledgments, these thank-yous, is in itself an acknowledgement of having reached the end of the doctoral journey, reflecting on the four-year process and the people who helped me arrive at my destination. First and foremost, I must thank the Ministère de l’Enseignement Supérieur et de la Recherche and the European University Institute. Both provided a home for me when they granted me the opportunity to pursue my PhD in such a supportive environment which fosters excellent international scholarship. Before starting my PhD, I imagined the role of the supervisor as a sort of guide—someone to help me chart a course and keep to it. Over the past years, my supervisor Professor Francesco Francioni did this and more, supporting me when the going got tough and redirecting me when I wandered off the path. I am deeply grateful for his patience and ability to see, and continuously steer me towards, the big picture when I may have otherwise gotten lost in the details. And although I cannot give him all of the credit, I am profoundly grateful for his fall 2010 Advanced Seminar on International Law and Human Rights: the Human Rights Dimensions of Environmental Protection, where I met the woman who is now my wife. Dr. Christine Bakker, research fellow at the EUI, also had a great influence on me during this time. But for Christine, I would not be at the EUI, and I thank her for helping me see my way from Bogota to Florence for my PhD. With an open door and an open mind, Christine has been an invaluable source of guidance in my work, and her willingness to read, discuss, and comment on my research has been unending. Over the past eight years, Dr. Frédéric Massé, director of the research center Centro de Investigación para Proyectos Especiales at the Universidad Externado de Colombia, has been a constant anchor for me. First as my Master’s thesis supervisor and now as a close and trusted iv friend, Fred has generously advised me on my path in academia, supported me throughout the PhD, and been an incredible source of expertise on the ever-evolving situation in Colombia (as well as a reliable recommender of quality rums). Thanks to the EUI, I have been privileged to benefit from the great minds (and hearts) of EUI professors, past and present. When I reached a crossroads—which seemed like an impasse—at the end of my first year, Professor Marise Cremona was a source of valued feedback and priceless support, while Professor Loïc Azulai’s patient guidance helped me frame my next steps. I owe them much for their support during that trying time. Professor Pascal Venesson, too, provided great inspiration to me, helping me refine my proposal and influencing my methodology. As I entered the more advanced stages of my thesis and saw new questions emerge within my research, I appreciated Professor Nehal Bhuta’s approachability and liveliness in discussing international humanitarian law topics, which particularly helped me in developing the analysis of my Mexican case study. Further thanks are due to Professor Bhuta for agreeing to serve as a member of my dissertation committee. I also owe a debt of gratitude to the Graduate Institute of International and Development Studies in Geneva, my undergraduate alma mater. The Graduate Institute is where I first met Professor Jorge Viñuales, a decade and a half ago, and is one reason I have been fortunate to cross paths with Professor Andrew Clapham on several occasions, creating the opportunity for rich discussions on non-state actors and human rights. It is an honor to have public international law luminaries Professors Viñuales and Clapham on the committee for my dissertation defense. In addition to the vibrant community at my home institution, I have also made several stimulating stopovers on my doctoral journey. My temporary academic homes outside of Europe also provided important spaces for research and growth. In Mexico City, my time at the Centro de Investigación y Docencia Económica (CIDE, Center of Economic Research and Teaching), which hosted me during my field research, was spent surrounded by foremost experts on security, drug violence, and constitutional law in Mexico. I am indebted to Professor Juan Salgado and others in this community of scholars, who played a critical role in the development of my Mexican case study. Last, but by no means least, is my treasured time v in Washington, DC at American University’s Center for Latin American and Latino Studies (CLALS). All of the Center staff were welcoming and helped make my stay at CLALS exceptional. My officemates, Professors Irma Sandoval and John Ackerman, were lively discussion partners and appreciated sources of expertise on the Mexican case. Finally, Professors Eric Hershberg and Alex Wilde were extraordinarily warm and open for discussion; I value our conversations on my thesis, working papers, and academia more than they know. Over the years, my scholarly work has benefited tremendously from collaborations with several international organizations and the relationships built with colleagues there. During my years in Colombia prior to starting my PhD, Amada Benavides, then-member of the UN Working Group on the use of mercenaries, was an excellent mentor in my early days with a nascent research agenda. My collaboration with her on several projects during this period has remained a source of inspiration for me. More recently, my work with the Geneva Center for the Democratic Control of Armed Forces (DCAF) provided me the opportunity to avail myself of the expertise of Anne-Marie Buzatu (DCAF) and André Du-Plessis (former DCAF); I remember our collaborations fondly, particularly our work in Santiago (Chile). The highs—and lows—on the road to the PhD have also been shared with close friends and family. My friends around the world have been incredibly supportive of me during this journey. I am particularly grateful to have had a community of friends who have an intimate understanding of the large undertaking that a research project represents: many thanks to Elisa, Stephanie, Stefano, Yann, Martin, Matthias, Jean-Claude, and Marco for their countless hours of multilingual and multidisciplinary theorizing, editing, and therapy. Thanks also to Ju, just for being Ju. This journey would not have been the same—or possible, even—without my family, on both sides of the ocean, and their steadfast love and support for all my life choices. The last person I wish to thank is my wife, Anjela. Were it in my power to grant her an honorary doctorate, I would do so! I, and this thesis, owe her much for her daily support, including help in editing this text.

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