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GA/SHC/4333
28 October 2021
Seventy-sixth Session, Virtual Meeting (AM)

Cybersecurity Actors Becoming Extensions of State Power, Independent Expert Warns Third Committee as Delegates Urge States to Uphold International Law

Profiling by Law Enforcement a ‘Persistent Problem’, Says Chair of Monitoring Body for Convention on Ending Racial Discrimination

Mercenaries and private actors profit from operating cybercapabilities that could be used during hostilities ‑ or in non-conflict settings ‑ to violate human rights, an independent expert told the Third Committee (Social, Humanitarian and Cultural) today, as delegates continued their dialogues with special procedure mandate holders.

Jelena Aparac, Chairperson-Rapporteur of the Working Group on the use of mercenaries as a means of impeding the exercise of the right of peoples to self-determination, warned that State and non-State actors harness cybercapabilities in pursuit of proxy agendas.  The market for offensive power is growing rapidly, and subject to little regulation.  Cybersecurity providers are becoming extensions of State command and, therefore, “mercenary-like” proxies.

She said States often obscure their involvement in malicious cyberoperations to gain strategic influence, evading their obligations under international law.  However, “recruiting private actors to provide military and security services in cyberspace does not relieve States from their obligations under international law”, she asserted.

Delegates engaging in the interactive dialogue broadly denounced hostile behaviour in cyberspace.  Venezuela’s representative drew attention to mercenaries supported, trained and financed by Colombia and the United States, detailing attacks by Colombian mercenaries against Haiti, Bolivia and his own country.  Colombia’s delegate roundly rejected these assertions, stressing that her country is neither an accomplice nor a shelter for criminal agencies.  Rather, Colombia combats and dismantles these groups.

Meanwhile, an observer for the European Union took issue with the Working Group for including private military and security companies under its mandate, explaining that the term “mercenaries” has a clear and universal definition under international humanitarian law.

Also today, Yanduan Li, Chairperson of the Committee on the Elimination of Racial Discrimination, took up the issue of racial profiling, notably by law enforcement, a persistent problem experienced by many people based on their ethnicity, descent, skin colour or national origin.  “Often, it is not recognized as such, or States lack adequate legislation or mechanisms to address it properly”, she explained.

She pressed States to ensure that all such complaints are facilitated, registered and followed up on, and that law enforcement officials are trained.

The Third Committee will reconvene at 10 a.m. on Friday, 29 October, to continue its consideration of human rights issues.

Interactive Dialogues ‑ Racial Discrimination

YANDUAN LI, Chairperson of the Committee on the Elimination of Racial Discrimination, said that despite the COVID‑19 crisis, the Committee has spared no effort to support States in the fight against racial discrimination and the promotion of equality.  Presenting its report (document A/76/18), she underlined that people of African descent and Asian descent, indigenous peoples and other minorities suffered the most throughout the pandemic, reporting impeded access to medical care, employment, housing and education.  Stressing that some have been victims of stigmatization, labelling and scapegoating, she urged Member States to remain vigilant in ensuring that members of these groups are protected from discrimination.

She went on to describe a rise in racist hate speech and hate crimes, noting that minorities are the main victims, and underlining the role of the Internet and social media in that regard.  States are still improperly equipped, either lacking adequate legislation or failing to establish proper mechanisms to combat such behaviour, including by holding perpetrators accountable.  Racial profiling, including among law enforcement officers, remains a persistent problem experienced by many individuals based on their ethnicity, descent, skin colour or national origin.  “Often, it is not recognized as such, or States lack adequate legislation or mechanisms to address it properly”, she explained.  States must ensure that all such complaints are facilitated, registered and followed up on, and that law enforcement officials are trained.

Turning to the Committee’s work, she said members held three sessions virtually, examining three reports submitted by State parties and providing recommendations.  However, due to the pandemic, it faces an unprecedented backlog of 47 reports for consideration.  At the same time, 63 State party reports are overdue, she said, recommending that the Simplified Reporting Procedure be used for all reports overdue by at least five years.  She then highlighted work carried out under the individual communication procedure of articles 11 and 14 of the Convention on the Elimination of All Forms of Racial Discrimination, as well as under the early warning and urgent action procedure, noting that the Committee adopted its General Recommendation No. 36, on preventing and combating racial profiling by law enforcement officials.  More broadly, she expressed hope that States will ensure that the treaty body system is adequately funded from the United Nations regular budget, which would allow the Committees to work in a more predictable way in the promotion and protection of human rights.

In the ensuing debate, delegates agreed that the COVID‑19 pandemic had a disproportionate impact on minorities, aggravating racial discrimination.  “Discrimination due to hatred or intolerance or ignorance has no place in our societies”, the representative of Germany stressed, asking the Chair about best practices for protecting vulnerable groups from hate speech without limiting the freedom of speech.  Similarly, Italy’s delegate said new technologies represent both an opportunity and a threat to free speech, inquiring about actions the United Nations can take to tackle emerging forms of discrimination.

Regarding racial profiling, Mexico’s delegate expressed support for the Committee’s work, citing guidelines drafted by Mexico in 2018 as a point of reference to understand this phenomenon.  The representative of the United States welcomed the Special Rapporteur’s upcoming visit to his country.

Turning to the responsibility of States as parties to the Convention, the representative of the Russian Federation invited the Committee to investigate discrimination faced by Russian-speaking communities in the Baltic region and in Ukraine.  China’s delegate meanwhile cited the failure of Western countries to tackle all sorts of discrimination.

Also speaking were representatives of Venezuela, France, Iran, Algeria and Fiji, as well as an observer for the European Union.

Ms. LI, in response, pointed first to the Committee statement calling on all State parties to avoid discrimination once vaccines become available.

She said the prevalence of hate speech, especially against people of Asian descent during the pandemic, is a sign that Member States must act to strengthen their legislative framework.  Training could be a solution towards the promotion of tolerance, she said, underling the importance of General Recommendation 36 adopted by the Committee, which recognizes racial profiling as a form of discrimination.  By way of conclusion, she emphasized that racial discrimination can only be eliminated through strong political commitments made by State parties, and the provision of additional resources. 

Use of Mercenaries, Right to Self-Determination

JELENA APARAC, Chairperson-Rapporteur of the Working Group on the use of mercenaries as a means of impeding the exercise of the right of peoples to self-determination, introduced its report (document A/76/151), which highlights the human rights impact of mercenaries, mercenary-related actors and private military and security companies engaging in cyberactivities.  “Mercenaries and private actors profit from developing, maintaining and operating cybercapabilities, which might be used in the conduct of hostilities and in non-conflict settings to violate human rights, including the right of peoples to self-determination”, she said.

Emphasizing that the Working Group has repeatedly drawn attention to the evolution of contemporary armed conflict, she recalled that the 2020 report to the General Assembly identified “cyber mercenaries” as a contemporary category of actors engaged in mercenary-related activities.  State and non-State actors harness cybercapabilities in pursuit of proxy agendas or interests and engage private actors to conduct offensive or defensive operations ‑ for example, to protect their own networks and infrastructure ‑ or to carry out cyberoperations against their adversaries.  Individuals conducting cyberattacks cause damage remotely and across various jurisdictions.  Cyberservices are also provided outside of the context of armed conflict, including for the purposes of intelligence gathering and surveillance, but also for domestic law enforcement and the maintenance of security, she explained.  The market for offensive cybercapabilities is growing rapidly ‑ and subject to little regulation, offering an opportunity to make significant profits.  As a result, many conventional private military and security companies are developing cybersecurity divisions.  Cybersecurity providers, like more traditional private military and security companies, work with Governments and become extensions of State power and, therefore, could be considered mercenary-like proxies.

She said States ‑ either by commission or omission ‑ obscure their involvement in malicious cyberoperations, seeking to gain strategic influence by evading their responsibilities under international law, including for violations and abuses committed by non-State actors recruited for this purpose. “Recruiting private actors to provide military and security services in cyberspace does not relieve States from their obligations under international law”, she warned.  It is undeniable that cyberactivities could cause violations of a variety of human rights ‑ notably the right to life, economic and social rights, freedom of expression, the right to privacy and the right to self-determination.  She called on States to elaborate an international regulatory framework for private military and security companies, including when they provide cyberservices and undertake cyberwarfare, and to insist on the need for a legally binding instrument governing cyberspace.

When the floor opened for questions and comments, an observer for the European Union denounced malicious behaviour in cyberspace, as it undermines international security along with the benefits provided by the Internet and information and communication technologies.  Expressing support for a peaceful and secure cyberspace where human rights and fundamental freedoms fully apply, she called on States to act against those who conduct malicious cyberactivities.  As the term “mercenaries” has a clear and universal definition under international humanitarian law, she expressed concern about the confusion caused by the Working Group in extending its mandate to include private military and security companies.

The representative of Venezuela condemned the use of private military companies by States under the pretext of defence or security and called for the creation of binding instruments to cover these types of operations.  Detailing the gravity of the situation, he said that in July Colombian mercenaries killed Haiti’s President.  In May 2020, Colombian mercenaries illegally entered Venezuela and launched an attack against the President, while more recently, there was an attempt to take 10,000 mercenaries into Bolivia to kill the elected President.  These groups were supported, trained and financed by Colombia and the United States, he said, adding that Colombia provided mercenaries ‑ retired members of its armed forces ‑ with shelter.  The attacks against Venezuela, Haiti and Bolivia all included elements of non-conventional war, he said.

In response, the representative of Colombia said her country has always defended the free digital area, applying international law in full observance of human rights.  She called for strengthening State cooperation to identify potential threats, rejecting Venezuela’s unsubstantiated claims.  Colombia is not an accomplice in crime, nor does it shelter criminal agencies.  Rather, it combats and dismantles them.

Meanwhile, the representative of Morocco described “endless efforts” by Algeria to jeopardize her country’s territorial integrity, explaining that while Algeria spends billions of dollars on the separatist and mercenary group named Popular Front for the Liberation of Saguia el-Hamra and Rio de Oro (POLISARIO Front), the needs of its own people remain unmet, with Algerians lining up daily for milk or a gallon of drinking water, as documented by international press.  Further, Algerians are being pushed out of their country, with more than 10,000 fleeing misery and risking their lives to reach Europe.

To that, the representative of Algeria accused her counterpart from Morocco of creating “fantastic theories”, calling the country “a violator of human rights” and “a colonist regime” that hides “behind their beautiful postcards” in palaces built at the expense of the Moroccan people.  Indeed, Moroccans are dying of hunger and lack the means to attend school, while Morocco’s machinery protects and colonizes Western Sahara, she asserted.  Recalling the hostilities perpetrated against Algeria, notably the pillage of Western Sahara resources, with anti-Algeria propaganda, she urged States to disregard Morocco’s remarks.

Also speaking were representatives of the Russian Federation, Armenia and Cuba.

Ms. APARAC responded that the Working Group has a mandate to study the impact of mercenaries, mercenary-related actors and private military and security companies.  On the issue of accountability in cyberspace, she said the Working Group is calling for a better accountability framework, stressing that States have a duty to support victims, providing remedies and redress when their human rights have been violated.  It is vital to gain greater transparency and oversight of business standards, using clear procedures.  She pressed States to provide guidelines that adhere to human rights protections.  As well, she underscored the need to develop public mechanisms for the approval and oversight of surveillance technologies, and to ensure that a robust, independent oversight system is in place for surveillance and hacking.  States must involve the judiciary in any cybermeasures that could impact the human rights of their citizens, she added.

For information media. Not an official record.