32/39 Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions on the right to life and the use of force by private security providers in law enforcement contexts
Document Type: Final Report
Date: 2016 May
Session: 32nd Regular Session (2016 Jun)
Agenda Item: Item3: Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development
GE.16-07411(E)
Human Rights Council Thirty-second session
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions on the right to life and the use of force by private security providers in law enforcement contexts
Note by the Secretariat
The Secretariat has the honour to transmit to the Human Rights Council the report of
the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns,
submitted pursuant to Council resolution 26/12. In the report, the Special Rapporteur
presents a short commentary on the process of updating the United Nations Manual on the
Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions
(known as the Minnesota Protocol) and surveys the standards for the use of force by private
security providers in law enforcement contexts.
Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions on the right to life and the use of force by private security providers in law enforcement contexts
Contents
Page
I. Activities of the Special Rapporteur ................................................................................................ 3
A. Communications ...................................................................................................................... 3
B. Visits ........................................................................................................................................ 3
C. Press releases ........................................................................................................................... 3
D. International and national meetings ......................................................................................... 5
II. Updating of the Minnesota Protocol ............................................................................................... 6
III. Right to life and the use of force by private security providers in law enforcement contexts .......... 6
A. Privatization of security services ............................................................................................. 8
B. International efforts at regulation and oversight ...................................................................... 10
C. General observations on the use of force ................................................................................. 11
D. Duty of precaution as applied to private security providers..................................................... 12
E. Operational conduct of private security providers ................................................................... 14
F. Particular contexts and challenges ........................................................................................... 15
G. Monitoring and accountability ................................................................................................. 17
IV. Conclusions ...................................................................................................................................... 20
V. Recommendations ............................................................................................................................ 21
I. Activities of the Special Rapporteur
1. In October 2015, the Special Rapporteur submitted to the General Assembly a report
in which he focused on the role of forensic investigations and the application of the death
penalty to foreign nationals (A/70/304).
2. In June 2015, the Special Rapporteur presented to the Human Rights Council a
thematic report on the use of information and communications technologies to secure the
right to life (A/HRC/29/37).
3. On 9 March 2016, jointly with the Special Rapporteur on the rights to freedom of
peaceful assembly and of association, the Special Rapporteur presented to the Human
Rights Council, pursuant to its resolution 25/38, a report on the proper management of
assemblies (A/HRC/31/66).
4. On 22 March 2016, the Special Rapporteur presented an oral update to the Human
Rights Council on the situation of human rights in Burundi in his capacity as a member of
the United Nations independent investigation on Burundi, pursuant to Council resolution
S-24/1.
A. Communications
5. Observations on the communications sent by the Special Rapporteur between
1 March 2015 and 29 February 2016 and replies received between 1 May 2015 and 30
April 2016 are contained in document A/HRC/32/39/Add.3.
B. Visits
6. From 8 to 18 September 2015, the Special Rapporteur visited Ukraine. His mission
report is published as an addendum to the present report (A/HRC/32/39/Add.1).
7. The report in follow-up to the mission undertaken by the Special Rapporteur to
Mexico from 22 April to 2 May 2013 is published as an addendum to the present report
(A/HRC/32/39/Add.2).
8. From 1 to 8 March 2016, the Special Rapporteur visited Burundi as a member of the
United Nations independent investigation on Burundi, pursuant to Human Rights Council
resolution S-24/1 adopted on 17 December 2016. He has subsequently been appointed the
chair of the investigation.
9. Since the presentation of his previous report to the Human Rights Council in June
2015, the Special Rapporteur has sent country visit requests to the Governments of Israel,
Mozambique and the State of Palestine.
10. He thanks the Governments of Honduras, Iraq, Nigeria and the State of Palestine,
which have responded positively to his requests, and encourages the Governments of
Egypt, Eritrea, the Islamic Republic of Iran, Israel, Mozambique, Pakistan, Rwanda and Sri
Lanka to accept his pending requests for a visit.
C. Press releases
11. On 21 April 2015, the Special Rapporteur joined in issuing a statement by special
procedure mandate holders on the decision of the Supreme Court of Pakistan to suspend
death sentences imposed by military courts.
12. On 29 April 2015, he joined in issuing a statement emphasizing the need to ensure
transparency and accountability in the use of drones.
13. On 30 April 2015, he joined in issuing a statement warning about the consequences
of pre-election violence in Burundi.
14. On 13 May 2015, he joined in issuing a statement condemning the killing of three
bloggers in Bangladesh.
15. On 18 May 2015, he joined in issuing a statement calling for a central role for civil
society to guarantee inclusive post-2015 development goals.
16. On 21 May 2015, he joined in issuing a statement welcoming the Indonesian,
Malaysian and Thai leaders’ decision not to push back migrants and asylum seekers
arriving in their territorial waters.
17. On 5 June 2015, he joined in issuing a statement drawing attention to the grave harm
climate change poses to the worldwide enjoyment of human rights.
18. On 3 July 2015, he issued a statement urging the Mexican authorities to consider
new evidence in the Tlatlaya case.
19. On 16 July 2015, he joined in issuing a statement calling on the Security Council to
take action to prevent mass violence in the Great Lakes region.
20. On 7 August 2015, he joined in issuing a statement condemning the killing of the
blogger Niloy Neel in Bangladesh.
21. On 27 August 2015, he joined in issuing a statement warning about the increase in
violence against journalists and media workers in South Sudan.
22. On 27 August 2015, he joined in issuing a statement calling for increased respect for
the rule of law in the context of a genocide trial in Guatemala.
23. On 9 September 2015, he joined in issuing a statement welcoming the report of the
Inter-American Commission on Human Rights on disappeared, executed and tortured
students in the State of Guerrero in Mexico.
24. On 7 October 2015, on the occasion of World Day against the Death Penalty, he
joined in issuing a statement on the use of the death penalty for drug-related crimes.
25. On 13 November 2015, he joined in issuing a statement welcoming the adoption of
Security Council resolution 2248 (2015) on Burundi.
26. On 16 November 2015, he joined in issuing a statement expressing deep concern
about ongoing bloodletting in the Occupied Palestinian Territory.
27. On 1 December 2015, jointly with other mandate holders, he called on the Turkish
authorities to carry out a thorough, independent and transparent investigation into the
killing of Tahir Elçi.
28. On 9 December 2015, he joined in issuing a statement on the occasion of the fiftieth
anniversary of the International Covenant on Civil and Political Rights and the International
Covenant on Economic Social and Cultural Rights calling for the implementation of the
two treaties.
29. On 21 January 2016, he joined in issuing a statement urging the Government of
Ethiopia to halt the violent crackdown on Oromia protesters and ensure accountability for
abuses.
30. On 1 March 2016, he joined in issuing a statement welcoming the judgment of two
former military officials for crimes against humanity in Guatemala and calling on the
authorities to ensure appropriate redress for the victims.
31. On 30 March 2016, he issued a statement on the alleged summary execution of a
Palestinian in Hebron by Israeli security forces.
32. On 7 April 2016, the Special Rapporteur joined in issuing a statement welcoming
the new Principles and Guidelines on Human Rights while Countering Terrorism in Africa,
drafted by the African Commission on Human and Peoples’ Rights.
33. During the reporting period, the Special Rapporteur joined in issuing other
statements on the death penalty in Chad, China, India, the Islamic Republic of Iran,
Pakistan, Saudi Arabia, the United States of America and Zambia.
D. International and national meetings
34. The activities carried out by the Special Rapporteur during the period from 14 April
to 14 July 2015 are outlined in his report to the General Assembly at its seventieth session
(A/70/304).
35. During the reporting period, pursuant to Council resolution 25/38, along with the
Special Rapporteur on the rights to freedom of peaceful assembly and of association, the
Special Rapporteur continued consultations with States and civil society concerning the
management of assemblies, in Pretoria (6-7 August 2015), Istanbul, Turkey (27-28 August
2015), and Geneva, Switzerland (22-24 October 2015).
36. On 4 and 5 September 2015, he participated in an experts meeting on a draft general
comment on article 4 of the African Charter on Human and Peoples’ Rights, organized
jointly by his mandate, the Office of the United Nations High Commissioner for Human
Rights (OHCHR) and the African Commission on Human and Peoples’ Rights.
37. On 7 September 2015, he participated in a seminar on investigations during armed
conflict, organized by the Geneva Academy of International Humanitarian Law and Human
Rights.
38. On 21 October 2015, he visited the Metropolitan Police Specialist Training Centre,
in Gravesend, the United Kingdom of Great Britain and Northern Ireland.
39. On 29 October 2015, he participated in a panel event in New York on the revision of
the Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and
Summary Executions.
40. On 3 November 2015, he spoke in Banjul at the joint thematic dialogue on sexual
orientation and gender identity organized by the African Commission on Human and
Peoples’ Rights, the Inter-American Commission on Human Rights and the United Nations.
41. On 10 December 2015, he spoke at the launch in Geneva of The War Report: Armed
Conflict in 2014.
42. On 3 February 2016, he participated in an expert meeting in Geneva on the use of
force by corporate entities, aimed at informing the present report.
43. From 4 to 6 February 2016, he convened in Geneva two working groups (legal and
forensic) on the revision of the Manual on the Effective Prevention and Investigation of
Extra-Legal, Arbitrary and Summary Executions.
44. On 5 February 2016, he presented an update in Geneva to States on the Minnesota
Protocol.
45. On 9 March 2016, he participated in a side event in Geneva during the thirty-first
session of the Human Rights Council on the use of force and social protest, organized by
the International Network of Civil Liberties Organizations and Amnesty International.
46. On 6 April 2016, he participated in a panel discussion during the fifty-eighth
ordinary session of the African Commission on Human and Peoples’ Rights in Banjul,
launching the Commission’s general comment No. 3 on the African Charter on Human and
Peoples’ Rights: the right to life (art. 4).
47. On 14 April 2016, he spoke about human rights and ethical issues at the meeting in
Geneva of experts on lethal autonomous weapons systems, organized by the States parties
to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional
Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate
Effects.
II. Updating of the Minnesota Protocol
48. The Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary
and Summary Executions is one of the earlier founding documents of the mandate, adopted
in 1991. For some time, the document has required updating and supplementing, as
highlighted in several resolutions adopted by the Commission on Human Rights and
reaffirmed by the Human Rights Council between 1998 and 2010.1
49. Given the input he received from many interlocutors during country visits and in
thematic exchanges in the conduct of his mandate, the Special Rapporteur approached
OHCHR and it was decided that they would collaborate in undertaking an update process.
50. The full process of the update over the previous two years is described in the Special
Rapporteur’s report A/HRC/32/39/Add.4, and the completed text is presented to the
Council therein. The Special Rapporteur hopes that the updated Minnesota Protocol will
become a helpful reference for crime scene and forensic experts, as well as other
investigators, whose work makes a vital contribution to the protection of the right to life.
III. Right to life and the use of force by private security providers in law enforcement contexts2
51. The human rights system cannot be effective in the absence of security and, in some
cases, without the use of force. The modern State typically claims a monopoly on the use of
force, and as such is also politically responsible and internationally accountable for the
force it uses or allows to be used. The power to exercise force is easily abused in any
society. To avoid such abuses, those using force need to function within domestic legal
frameworks on the use of force that comply with international human rights law and, where
applicable, international humanitarian law. In addition, appropriate mechanisms for
accountability need to be in place.
52. There is an increasing tendency for States to allow many of their traditional
functions to be taken on or taken over by private operators, and security is no exception.
Security provision has become a global marketplace, with private security providers
1 See Commission resolutions 1998/36, 2000/32, 2003/33 and 2005/26 and Council resolutions 10/26
and 15/5.
2 The Special Rapporteur is grateful for research assistance from Thomas Probert and Josua Loots, and
advice from Stuart Maslen and other external reviewers.
guarding shopping malls, residencies and public streets, providing security during
demonstrations, running prisons and detention centres, training armed forces and police,
performing intelligence assessments and risk analyses, escorting convoys and ships,
providing personal security for diplomats, and offering many other services.3
53. In previous reports, the Special Rapporteur has developed international standards
relating to the use of force by law enforcement officials in the context of assemblies
(A/HRC/17/28) and in the context of arrest (A/66/330). He has also reported on the need
for proper domestic legislative frameworks on the use of force by the police
(A/HRC/26/36). In the present report, he explores the implications of the privatization of
security provision for the observance of those standards, and makes recommendations
aimed at ensuring that standards protecting the right to life are not diminished through
privatization.
54. In the present report, the Special Rapporteur focuses on the private provision of
security services in law enforcement contexts. The use of force by private entities in the
conduct of hostilities will not be discussed. The Special Rapporteur underlines the fact that
the established rules of international humanitarian law about determining a situation as an
armed conflict should be used. Not all uses of force in an armed conflict qualify as the
conduct of hostilities. For example, the provision of close protection to a businessperson or
diplomat in a State that is engaged in armed conflict does not ordinarily amount to direct
participation in hostilities, and any use of force in such contexts should be evaluated with
reference to domestic and international standards on law enforcement.
55. Throughout the present report, the Special Rapporteur uses the term “private
security providers” to describe all those private parties providing security services,
regardless of how they define themselves.
56. The provision of private security services on international waters, the use of private
security providers to ward off pirates, on deep-water drilling platforms and in other
contexts, are not analysed. That complex issue is worthy of a report in its own right.4
57. While many major private security providers have their headquarters in Europe and
North America, the industry operates and employs people across the globe. G4S, the
world’s largest private security company, employs more than 623,000 people on six
different continents, of whom more than three-fifths are in Asia, the Middle East and
Africa.5 However, although some of the larger private security providers clearly qualify as
transnational corporations, a substantial segment of the market is made up of small- or
medium-sized private security providers that may not operate internationally.
58. Certain international business and human rights norms may apply irrespective of the
size, sector, operational context or ownership structure, including the Guiding Principles on
3 See R. Abrahamsen and A. Leander, eds., Routledge Handbook of Private Security Studies (London
and New York, Routledge, 2015). See also H. Born, M. Caparini and E. Cole, “Regulating private
security in Europe: status and prospects”, Geneva Centre for the Democratic Control of
Armed Forces (DCAF), Policy Paper No. 20 (Geneva, DCAF, 2007), pp. 2-3.
4 See “Counterpiracy under international law”, Academy Briefing No. 1 (Geneva, Geneva Academy of
International Humanitarian Law and Human Rights, 2012); Alice Priddy, “The use of weapons in
counterpiracy operations” in Weapons under International Human Rights Law, S. Casey-Maslen, ed.,
(Cambridge, Cambridge University Press, 2014).
5 See www.g4s.com/en/Who%20we%20are/Our%20people/Our%20employees/.
Business and Human Rights: Implementing the United Nations “Protect, Respect and
Remedy” Framework.6
A. Privatization of security services
59. The use of private entities for security or law enforcement is not a new phenomenon.
Indeed, there is some evidence to suggest that the modern concept of professional,
bureaucratic policing was pioneered by private firms such as the Pinkerton Detective
Agency and its competitors during the mid-nineteenth century.7 However, the private
security sector is certainly rapidly expanding.8 In 2011, the Small Arms Survey conducted a
study comparing the number of private security personnel in 70 countries with the number
of police officers. Several countries stood out, including Guatemala, with 6 times as many
private security personnel as police officers, India, with nearly 5 times as many, South
Africa, with more than 2.5 times as many, and the United States of America, with 2.26
times as many.9
60. The privatization of State security services has steadily been increasing over recent
years, and the establishment of public-private partnerships in the area is not uncommon.10
There are several arguments supporting the privatization of public functions or services.11
Security may be privatized where government lacks the capacity either technically or
materially to perform its duties, or in certain circumstances it may be cheaper to privatize
certain functions than for governments to perform them themselves.12
61. Private security services provide some benefits, as far as the protection of life, limb
and property is concerned. At the same time the sector presents major challenges. Since
States are primarily responsible for human rights fulfilment, the increasing movement
toward the privatization of security raises questions as to roles, responsibilities, and
ultimately accountability in relation to human rights violations and abuses. The Danish
Institute for Human Rights has raised concerns about the trend towards privatization, noting
that “the logic of privatization suggests that states can distance themselves from
responsibility by simply firing the company in question”.13 Moreover, there is concern that
privatization could have a discriminatory impact because poor or marginalized
communities cannot afford the private services and are left underprotected.14
6 C. Seiberth, Private Military and Security Companies in International Law (Cambridge, Intersentia
Ltd., 2014), p. 25.
7 D. Sklansky, “The private police”, University of California Los Angeles Law Review, vol. 46, No. 4
(April 1999), p. 1182.
8 See A. Sinha and P. Chatterjee, “Calling security”, Business World (5 January 2016). Available from
http://businessworld.in/article/Calling-Security/05-01-2016-89925/.
9 See N. Florquin, “A booming business: private security and small arms” Small Arms Survey 2011.
Available from www.smallarmssurvey.org/publications/by-type/yearbook/small-arms-survey-
2011.html.
10 M. Mota Prado “Regulatory choices in the privatization of infrastructure” in S. Chesterman and A.
Fisher, Private Security, Public Order: The Outsourcing of Public Services and Its Limits (Oxford,
Oxford University Press, 2009), p. 108.
11 M. Mota Prado “Regulatory choices in the privatization of infrastructure”, p. 109.
12 International Institute for Strategic Studies, “Complex irregular warfare: the privatisation of force”,
The Military Balance, vol. 106, No. 1 (June 2006), pp. 411-416.
13 See IRIN, “Private security firms prosper as more migrants detained”, 12 March 2014. Available
from www.irinnews.org/report/99766/private-security-firms-prosper-as-more-migrants-detained.
14 See, for example, J. Cavallaro, “The urban poor: problems of access to human rights”, paper
presented at the sixth annual assembly of the International Council on Human Rights Policy,
62. The right to life has two components: the prevention of arbitrary deprivation of life,
and accountability where life may have been arbitrarily deprived. The growth of the private
security provider sector brings to the fore the question of whether private security providers
adhere to the same standards as public security regarding the use of force, and whether the
same level of accountability is in place should there be abuses of power. Concerns about
private security providers centre on the level of training for the security guards, vetting
procedures and practices in the selection process of employees, their mandates, whether
they are issued with weapons and, if so, which ones, the risk of abuse of authority and
excessive use of force, the level of professional standards, the adequacy of legal
accountability mechanisms, and compliance with existing laws.15
63. All States that play a role in the deployment of private security providers, whether
home State, host State or contracting State, must contribute to regulating the activities of
the private security provider to ensure accountability.16 The draft articles adopted by the
International Law Commission in 2001 on the responsibility of States for internationally
wrongful acts identify four instances when the acts of a private entity may be directly
attributed to the State: (a) when the private entity is “empowered by the law of that State to
exercise elements of the governmental authority … [provided that entity] is acting in that
capacity in the particular instance” (art. 5); (b) when the private entity is “acting on the
instruction of, or under the direction or control of, that State in carrying out the conduct”
(art. 8); (c) when the private entity is “in fact exercising elements of the governmental
authority in the absence or default of the official authorities and in circumstances such as to
call for the exercise of those elements of authority” (art. 9); and (d) when a “State …
acknowledges and adopts the conduct in question as its own” (art. 11).
64. When private security providers are tasked by the State to perform protective
functions or other forms of law enforcement, and empowered to use force in that capacity,
the State remains primarily responsible for their compliance with international human rights
law.17 However, in practice, the uncertainties that can arise in a transnational context
concerning regulation of public-private partnerships often result in an accountability
deficit.18
65. The State has a duty to respect and protect human rights, including the public’s
rights to bodily integrity: the rights to life, bodily security and the right to be free from
cruel, inhuman or degrading treatment or punishment. In order to achieve that goal there is
an obligation on the State to install regulative and legislative frameworks that protect the
human rights of those under its jurisdiction or control. When it comes to the regulation of
private security providers, the State has a duty to provide a regulative framework that
ensures that private security providers act in a manner respectful of human rights, and are
held accountable in instances in which they do not, regardless of whether the contracting
Guadalajara, January 2003, paras. 20-23. See also Inter-American Commission on Human Rights,
Report on Citizen Security and Human Rights (2009), paras. 70-73. Available from
www.cidh.oas.org/countryrep/Seguridad.eng/CitizenSecurity.IV.htm.
15 United Nations Office on Drugs and Crime, State Regulation concerning Civilian Private Security
Services and their Contribution to Crime Prevention and Community Safety (Vienna, United Nations,
2014), p. 21.
16 O. De Schutter, “The responsibility of States”, in Private Security, Public Order, p. 26.
17 The Special Rapporteur notes that this was the position taken by the two rapporteurs of the Human
Rights Committee in preparing draft general comment No. 36 on the right to life in September 2015.
18 Michael Likosky, “The privatization of violence” in Private Security, Public Order, p. 16.
party is the State itself.19 Given the context in which private security providers often work,
it is important to underline that those responsibilities can also apply extraterritorially.20
B. International efforts at regulation and oversight
66. A great many mechanisms now exist at the international level aimed at regulating or
monitoring the actions of private security providers. Meanwhile, an emerging regime of
soft law regulations and codes of conduct are aimed at improving oversight, control and
accountability in the sector, especially for those working in so-called “complex
environments”, areas experiencing or recovering from unrest or instability, where the rule
of law has been substantially undermined, and in which the capacity of the State authority
is diminished or non-existent.
67. The Voluntary Principles on Security and Human Rights were established in 2000 to
guide companies in maintaining the safety and security of their operations. The principles
are limited to the extractive industries and energy sectors, but apply to private security
providers insofar as they provide services for such corporations. Among the voluntary
principles on private security conduct is the principle that private security entities should
act in a lawful manner and should exercise restraint and caution in a manner consistent with
applicable international guidelines regarding the local use of force, including the Basic
Principles on the Use of Force and Firearms by Law Enforcement Officials and the Code of
Conduct for Law Enforcement Officials, as well as with emerging best practices developed
by companies, civil society and governments.
68. The 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 was established in
2005. Its mandate included monitoring and studying 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, and preparing draft international
basic principles that encouraged respect for human rights on the part of those companies in
their activities. After developing a draft international convention on the regulation of
private military and security companies, the Working Group has been conducting a global
assessment, on a regional basis, of national laws and regulations relating to such companies
(see A/HRC/24/45, A/HRC/27/50 and A/HRC/30/34).
69. The draft convention on private military and security companies was presented in
2010, at which time the Council established an open-ended intergovernmental working
group to consider the possibility of developing an international regulatory framework,
including the option of drafting a legally binding instrument on the regulation, monitoring
and oversight of private military and security companies. The working group has discussed
gaps in the current regulatory framework because very few States have specific legislation
on such companies. Efforts to ensure regulation through voluntary self-regulatory
mechanisms are still being rolled out (see A/HRC/WG.10/3/2, para. 52).The working group
is currently exploring both a legally binding instrument for private military and security
companies and considering a range of other options, including international standard-setting
and developing guidelines (A/HRC/30/47).
70. In a separate initiative, the Montreux Document on pertinent international legal
obligations and good practices for States related to operations of private military and
19 See Guiding Principles on Business and Human Rights, principle 2.
20 B. S. Buckland and A. M. Burdzy, Progress and Opportunities: Challenges and Recommendations
for Montreux Document Participants, 2nd ed. (Geneva, Geneva Centre for the Democratic Control of
Armed Forces, 2015), pp. 23-25.
security companies during armed conflict was adopted in 2008. It focuses on situations of
armed conflict, but can be of broader use, and supports States in their efforts to ensure that
such companies comply with international human rights and humanitarian law. It does not
create any new legal obligations, and is not necessarily a step towards a new treaty; rather,
it serves as a guiding document. Part two of the document identifies good practices aimed
at guiding States in the regulation of private military and security companies. As at May
2016, 53 States and 3 international organizations had expressed support for the Montreux
Document.21
71. Another voluntary initiative was the development of the International Code of
Conduct for Private Security Service Providers, a multi-stakeholder initiative aimed at
establishing principles and standards for the provision of private security services. In
September 2013, it also established an external independent governance and oversight
mechanism, the International Code of Conduct for Private Security Service Providers’
Association, with the aim of improving accountability in the sector. Its membership has
three independent pillars: private security providers, States and intergovernmental
organizations, and civil society. The core functions of the Association are the certification
of member companies, monitoring and assessment of compliance with the Code itself, and
receiving and handling complaints. It enables reviews and follow-up on corporate
performance, and can also provide an avenue for third party complaints, although at present
that opportunity is very limited as the Association does not have the necessary resources to
investigate complaints. The Code applies primarily to the activities of member private
security providers in complex environments. However, it is also relevant to other
stakeholders in terms of defining expectations and performance standards in relation to
contracting policies and practices.
C. General observations on the use of force
72. With respect to the use of force, where they provide detail, those frameworks tend to
defer to the Basic Principles on the Use of Force and Firearms by Law Enforcement
Officials and the Code of Conduct for Law Enforcement Officials. The Basic Principles, in
accordance with the definition provided in the commentary to the Code of Conduct, are
designed to provide standards for use of force by all officers of the law, whether appointed
or elected, who exercise police powers, especially the powers of arrest or detention.
73. However, the Basic Principles do not apply directly to the personnel of private
security companies, who do not have official law enforcement powers, unless they have,
exceptionally, received such powers from the competent authorities. In particular, they do
not apply to private security personnel working for private companies, since they are not
carrying out State functions.22
74. The remainder of the present report, however, turns to the question of whether there
are specificities relating to the use of force by private security providers in that context, and
whether the same standards can be adapted for private security providers operating on
behalf of another private corporation. When not in the exceptional circumstance of working
directly for the State, private security personnel have the same legal rights and
responsibilities as ordinary citizens, but the level of their organization, their asserted
21 See www.mdforum.ch/en/participants.
22 Amnesty International, Use of Force: Guidelines for Implementation of the UN Basic Principles on
the Use of Force and Firearms by Law Enforcement Officials (Amsterdam, Amnesty International,
2015), p. 14.
expertise, and their preparedness to use force, all suggest that their conduct, particularly
whether any use of force is reasonable and not excessive, should be judged more strictly.
75. As is the case for State agents, before and during any use of force by private security
personnel, all reasonable precautionary steps to protect life and prevent excessive violence
must be taken, including the provision of appropriate equipment and training, the
proscription of inappropriate weapons, and careful planning of individual operations. States
must adopt a clear legislative framework for the use of force by law enforcement or other
individuals that complies with international standards, including the principles of necessity
and proportionality. The intentional lethal use of force by law enforcement officials or
others must be prohibited unless it is strictly unavoidable in order to protect life, making it
proportionate, and all other means are insufficient to achieve that objective, making it
necessary. After any use of force there should be some form of review, with a full
investigation wherever life has been lost or serious injury inflicted, and accountability
mechanisms in place where such an investigation suggests the use of force may have been
unlawful, including remedies for victims.
76. As noted above, where States choose to devolve some of their responsibilities for the
provision of security to private entities, it is clear that those actions are attributable to the
State, and that at least the same restrictions apply to private security providers operating in
such a context as would apply to State law enforcement personnel. In the sections that
follow the Special Rapporteur turns to situations in which the standards are perhaps less
authoritative, but, he argues, must remain normatively identical, if practically distinct.
D. Duty of precaution as applied to private security providers
77. In many cases, once a situation arises in which the use of force is considered, it is
already too late to prevent force needing to be used. In order to save lives, all possible
measures should be taken “upstream” to avoid situations in which force needs to be used, or
to ensure that if force is required, the damage is contained as much as is possible. A failure
to take proper precautions in such contexts, where life is at risk, constitutes a violation of
the right to life (see A/HRC/26/36, paras. 63 and 64).
78. The precautionary principle is now well established for State law enforcement,
although it has different content to the analogous principle in international humanitarian
law.23 In the present section, the Special Rapporteur identifies the many analogous
responsibilities that private security personnel have, and by implication the responsibilities
that other entities, including States, have to ensure that standards are met.
79. Those responsible for the use of force by any entity must ensure that personnel
receive proper training, including in “less-lethal techniques”. The Working Group on
mercenaries reported that, even when countries had regulations on training of private
security personnel, they almost never included any training on human rights (see
A/HRC/27/50, paras. 17 and 47). Seeking certification from a recognized body to ensure
and demonstrate compliance with established standards will contribute to the adherence of
private security providers to the precautionary principle.
80. The Basic Principles on the Use of Force and Firearms by Law Enforcement
Officials require that governments and law enforcement agencies develop a range of means
as broad as possible and equip law enforcement officials with various types of weapons and
ammunition that would allow for a differentiated use of force and firearms. The Principles
23 See International Committee of the Red Cross, “The use of force in law enforcement operations”
(2015). Available from www.icrc.org/en/document/use-force-law-enforcement-operations.
also stipulate that, for the same purpose, it should be possible for law enforcement officials
to be equipped with self-defensive equipment. Not only should the equipment be used if
available, as required by necessity, but such equipment should be made available in the first
place. States should also ensure that all law enforcement officials are provided with training
and are tested in accordance with appropriate proficiency standards in the use of force (see
A/HRC/26/36, para. 52). The same requirements should be made of private security
providers, including specialized equipment or training for the particular contexts in which
their personnel may work.
81. According to the United Nations Office on Drugs and Crime (UNODC), a
significant number of States worldwide allow civilian private security personnel to be
armed with firearms or other potentially lethal weapons. The use and regulation of weapons
in that context also varies greatly, ranging from situations where 2 per cent of private
security providers are estimated to be armed in countries like Croatia, India and Sweden, to
instances where 80 per cent are armed in the Dominican Republic, and 85 per cent in
Colombia.24 The importance of strict regulation of possession and use of firearms is self-
evident. This requires registration of weapons at the level of the company, and also with
respect to the individual responsible. Moreover, there should be adequate regulations in
place to ensure that firearms are stored in secure places and that they are well controlled by
the company.25 It is of great concern that, where private security personnel are permitted to
carry firearms, their training in safe and effective use of such weapons is not standardized
or, in many cases, regulated at all. Even when legal requirements exist regarding the vetting
and training of private security personnel, they often merely indicate that the provider is
responsible for ensuring that employees are properly trained.26
82. The potential consequence of insufficient weapons training was highlighted in
December 2015 in Pakistan, when a private security guard accidentally discharged his
weapon inside a multinational bank, killing one of the bank personnel and wounding
another.27 Moreover, the risks of allowing private security personnel to carry and
potentially use weapons when off-duty were illustrated when a security guard employed by
GardaWorld shot and killed two men in a fast-food restaurant in Canada during his break in
January 2015.28
83. However, as noted above, fatal abuses do not occur only in situations where private
security providers are armed or weapons are used. In 2004, a 15-year-old boy died in a
youth prison in the United Kingdom after being restrained by private security guards.29 In
24 UNODC, State Regulation concerning Civilian Private Security Services and their Contribution to
Crime Prevention and Community Safety (2014), p. 43. Available from
www.unodc.org/documents/justice-and-prison-reform/crimeprevention/Ebook0.pdf.
25 Born, Caparini and Cole, “Regulating private security in Europe” (see footnote 3 above), p. 27.
26 Florquin, “A booming business: private security and small arms” (see footnote 9 above), pp. 123-124.
27 See M. Raja, “No weapons training: Bank staffer dies after guard’s gun goes off ‘accidentally’”,
Express Tribune, 18 December 2015. Available from http://tribune.com.pk/story/1011999/no-
weapons-training-bank-staffer-dies-after-guards-gun-goes-off-accidentally/.
28 See J. Edmiston, “Toronto police won’t charge security guard who shot and killed two men at
Danforth McDonald’s”, National Post, 15 July 2015. Available from
http://news.nationalpost.com/news/toronto-police-wont-charge-security-guard-who-shot-and-killed-
two-men-at-danforth-mcdonalds.
29 See C. Sambrook, “G4S guard fatally restrains 15 year old – gets promoted”, Open Democracy, 22
July 2013. Available from www.opendemocracy.net/ourkingdom/clare-sambrook/g4s-guard-fatally-
restrains-15-year-old-gets-promoted. See also BBC News, “Criticism over youth jail death”, 28 June
2007. Available from http://news.bbc.co.uk/1/hi/england/6250406.stm.
2010, an Angolan deportee died of a heart attack after being restrained by three security
guards.30 In both cases, the detainees reportedly shouted that they could not breathe.
84. The responsibility to plan an appropriate operational response to an emerging
situation applies as clearly to private security providers as it does to State law enforcement.
However, in the case of private security providers there exists an additional potential
precautionary step, namely to call upon the State’s law enforcement personnel. In
circumstances where private security providers resort to force having turned down an
opportunity to defer to the State’s police, their full compliance with the requirements of
precaution would be called into question. In circumstances where help from authorities was
forthcoming, private security providers can no longer justify the use of force under the
principle of self-defence or defence of others.
85. Unless directly contracted by the State to do so, which is itself problematic, the
contractual responsibility of private security providers in the context of assemblies is not to
facilitate the right to freedom of peaceful assembly, but rather to protect the property or
personnel of the contracting party. The protection of the rights and safety of the public
more broadly remains the duty and function of the State. Private security providers should
defer to properly trained and equipped specialist law enforcement units wherever possible.
E. Operational conduct of private security providers
86. The two standards generally applied at the instant of an operation or exchange of
force are necessity and proportionality. In the present section, the Special Rapporteur
considers whether there are particularities to the application of those standards to the use of
force by private security providers.
87. Necessity is a factual cause and effect assessment that evaluates whether force
should be used at all, and if so, how much force is actually unavoidable in order to achieve
the desired outcome. The requirement of necessity raises the question of whether the threat
could not be averted by resort to less harmful means and, thus, implies a graduated
approach to the use of force. Therefore, any use of force can be regarded as necessary only
when it constitutes the least harmful means available at the time that can be expected to
achieve the desired outcome.
88. The proportionality requirement relates to the question of whether the benefit
expected to result from the use of force, that is, neutralizing a threat, justifies the harm
likely to be caused by it. While establishing necessity requires a factual cause-and-effect
assessment, demanding that the least harmful means be used to achieve a desired effect,
proportionality entails a value judgment that balances harm and benefit, demanding that the
harm that might result from the use of force is proportionate and justifiable in relation to the
expected benefit.
89. As far as the right to life is concerned, the proportionality requirement demands that
the use of firearms is permissible only if the purpose is to protect another life from a threat,
and is sometimes called the “protect life principle”. The use of lethal or potentially lethal
force to protect property or assert State authority does not meet the proportionality
requirement.
90. Given that they are cumulative requirements, proportionality can place a ceiling on
the level of force that may be considered necessary, and vice versa. For example, it may be
30 See BBC News, “Jimmy Mubenga: Deportee shouted ʽyou’re killing me’”, 4 November 2014.
Available from www.bbc.com/news/uk-england-london-29902375.
“necessary” to shoot a fleeing thief if that is the only way to stop him or her from escaping,
in an objective cause-and-effect assessment. However, thus injuring the thief would not be
“proportionate”, because it would amount to an excessively harmful means of stopping a
comparatively minor crime (a value judgment).
91. In some jurisdictions, such as the United States, every citizen, including private
security personnel, has the right to make an arrest in certain circumstances. However,
importantly, a citizen’s arrest must always be made at the arrester’s own risk: if the arrest
proves unlawful, the arrester is subject to criminal or civil liability. In all circumstances, the
amount of force that can lawfully be used in making an arrest largely depends on the type
of offence, but the general rule is that force cannot exceed the extent of resistance offered.
92. On account of their organized character, and the training that, as a matter of
regulation, they must have received, those using force as part of a private security provider
should be subjected to stricter scrutiny than other members of the public as to whether they
have met the legal standards. In that context, the Special Rapporteur is concerned that the
existence of Stand Your Ground laws can give licence for private security providers and
other essentially private entities to seek out confrontation where safe retreat is a viable
option, and as such are not in accordance with the precautionary principle (see, for
example, CCPR/C/USA/CO/4, para. 10).
93. That organizational characteristic implies that those high up a chain of command or
authority, including those not present at the event in question, can potentially be held
accountable for use of force by private security personnel. The different level and
mechanisms of accountability for such abuses are discussed below.
F. Particular contexts and challenges
94. Having discussed the nature of the standards that can be applied to private security
providers in a law enforcement setting, in the present section the Special Rapporteur
addresses certain contexts in which the use of force by private security providers can be
particularly problematic.
1. Private security providers and detention
95. States are increasingly making use of private security providers as part of their
correctional services. A 2013 report found that in at least 11 countries, there was some form
of prison privatization, with detention services provided by private security providers for 8
per cent of the prison population in the United States and 19 per cent in Australia.31
96. In 2001, the Bureau of Justice Assistance of the United States identified the use of
force as a potential reason not to privatize detention facilities, owing to the uncertainties
around the deprivation of liberty and the preservation of the rights of inmates when private
entities are involved.32
31 See C. Mason, International growth trends in prison privatization (Washington, DC, The Sentencing
Project, 2013). Available from
http://sentencingproject.org/doc/publications/inc_International%20Growth%20Trends%20in%20Pris
on%20Privatization.pdf.
32 See J. Austin and G. Coventry, “Emerging issues on privatized prisons”, Bureau of Justice
Assistance, February 2001. Available from www.ncjrs.gov/pdffiles1/bja/181249.pdf.
97. In a recent incident in the United Kingdom, at a juvenile detention centre managed
by G4S, private security personnel improperly used force on several of the young inmates.33
Undercover film footage appears to show that the guards tried to conceal their behaviour by
ensuring that the incidents took place in areas where the surveillance equipment in the
detention centre could not film them. That raises concerns about potential undocumented
and underreported abuses of the same nature. Following the incident, the Chief Inspector of
Prisons of the United Kingdom announced that all prison officers dealing with children
should wear cameras in order to monitor behaviour.34
98. In 2015, in Australia a bill was tabled before Parliament giving Serco, a private
security company contracted by the Australian Department of Immigration and Border
Protection to run the country’s immigration detention facilities, greater discretion and
power to use force in the management of the facilities. The Australian Human Rights
Commission raised concerns, citing several incidents about which it had received
complaints in relation to the conduct of private security providers in the management of
detention centres.35 As part of their responses to the significantly higher flow of refugees
into Europe over the previous year, several European States have also been making use of
public-private partnerships to manage temporary asylum facilities. In September 2014, the
German press published images exposing abuse in one such facility, raising questions about
how staff had been recruited and trained.36
99. In the context of detention it is worth re-emphasizing that any serious injury or death
that occurs in custody merits a full investigation. When the State deprives an individual of
liberty, its control of the situation, directly or indirectly, yields a heightened level of
responsibility to protect that individual’s rights. That includes a positive obligation to
protect all detained persons from violence, as well as to provide food, water, adequate
ventilation, an environment free from disease, and adequate health care.37 Where a person
dies or suffers serious injury in custody, there is a presumption of State responsibility, and
the burden of proof rests upon the State to prove otherwise through a prompt, impartial,
thorough and transparent investigation carried out by an independent body.38
33 See BBC News, “G4S Medway young offenders centre staff suspended over abuse claims”, 8 January
2016. Available from www.bbc.com/news/uk-england-kent-35260927.
34 See D. Barrett, “All child jailers should have body-worn cameras after G4S Medway scandal, says
watchdog”, Telegraph, 26 January 2016. Available from www.telegraph.co.uk/news/uknews/law-
and-order/12121948/All-child-jailers-should-have-body-worn-cameras-after-G4S-Medway-scandal-
says-watchdog.html.
35 See Australian Human Rights Commission, “Use of force in immigration detention facilities”, August
2015. Available from www.humanrights.gov.au/our-work/asylum-seekers-and-
refugees/publications/use-force-immigration-detention-facilities.
36 See “Asylum seekers abused in German shelter by security contractors”, Deutsche Welle, 28
September 2014. Available from www.dw.com/en/asylum-seekers-abused-in-german-shelter-by-
security-contractors/a-17960732. See also “Systemic shame”, Der Spiegel, 6 October 2014. Available
from www.spiegel.de/international/germany/abuse-case-reveals-terrible-state-of-refugee-homes-in-
germany-a-995537.html.
37 See African Commission on Human and Peoples’ Rights, “General comment No. 3 on the African
Charter on Human and Peoples’ Rights: the right to life (article 4)”, 2015, para. 36.
38 See African Commission on Human and Peoples’ Rights, “General comment No. 3”, para. 37. See
also the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela
Rules), rule 71, and African Commission on Human and Peoples’ Rights, Guidelines on the
Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa (the Luanda Guidelines),
paras. 20-21.
2. Impact on the State’s duty to provide security
100. In its study of regulatory frameworks for private security providers (A/HRC/27/50),
the Working Group on the use of mercenaries noted that in some cases legislation explicitly
prevents private security providers from performing policing functions. For example, in the
Democratic Republic of the Congo, private security providers are permitted to provide
protection to persons and property insofar as they do not replace the police, but they are
prohibited from patrolling, arresting, carrying and using firearms, special devices and any
other material normally reserved for the military and the police. Similar provisions are
contained in the laws of Morocco and Tunisia.
101. However, there also appear to be instances, as the Special Rapporteur observed in
Papua New Guinea, in which private security personnel significantly outnumber the police,
and as a result, in some circumstances, start de facto to take on some of the core
responsibilities of the police with respect to protection (see A/HRC/29/37/Add.1). Such a
situation could become particularly problematic where, as noted above, there are differing
accountability frameworks for the two groups.
102. To the extent that the provision of security by private security providers supplements
that provided by the State, it ought to increase overall levels of security, and therefore
protection of the right to life. However, States should guard against reinforcing any trend
towards discriminatory security, to which private security providers may contribute.
3. Private use of private security providers
103. There are several contexts in the corporate sector where the overlap between private
and public can be problematic, such as mass labour protests or disputes, or other mass
gatherings taking place on or around private property, where the corporation involved may
choose to employ a private security provider for security provision. As noted above in the
context of assemblies, or other activities that take place on the border of public and private,
either physically or conceptually, it is important to bear in mind that private security
providers have a very different mandate and set of priorities to the police. As such, the
police should be called in whenever uncertainties exist with regard to private and public
interests, especially concerning the use of force in such contexts.
104. A further level of complexity is added when a private corporation employs security
guards, sometimes using a recognized private security provider to recruit the personnel, but
the private corporation itself is a company of a different type, such as an extractive
industry. It is important to underline that the standards described above with respect to
training, equipment, or the use of force apply to all security personnel, regardless of the
main function of the company employing them. In circumstances in which a recognized
private security provider has been used to recruit staff, there can also be confusion about
the chain of command and decision-making, the clarity of which is an important element of
precaution. The use of certified security providers can contribute to greater precaution in
that regard.
G. Monitoring and accountability
105. Accountability processes when a violation has potentially occurred represent a vital
part of the protection of the right to life. With respect to a globalized and transnational
industry such as the private security sector, it is important to ensure that accountability
exists at the international and domestic (judicial) levels, and at the internal (company) level.
1. Monitoring the use of force
106. Often the first step in any process of accountability is effective monitoring of levels
of use of force. That necessary step remains sadly incomplete in many contexts with respect
to the use of force by State law enforcement. However it is even less complete in the case
of the use of force by private security providers. That data gap fundamentally undermines
the work of national and international efforts to ensure accountability for human rights
abuses.
107. In order for any organization that uses or potentially uses force for the purpose of
security provision demonstrably to respect the right to life, there must be a system of
mandatory reporting of all incidents involving the use of firearms, all deaths, and any
serious injuries.39 It is good practice that such a system also requires mandatory reporting of
potentially lethal incidents.
2. Accountability under international law
108. While States play the primary role in international law, particularly with regard to
law-making and international legal responsibility, and while the regulation and scrutiny of
the private security sector may primarily be a question for domestic law, that does not mean
there can be no international element.40 International human rights law does not exclusively
govern the conduct of States; it has been variously confirmed that it is the nature of the
conduct, and not the entity, that will determine whether or not international human rights
law is applicable.41
109. Against the backdrop of uncertainty around the exact role that corporations play in
the international legal context, there is consensus that corporations should at the very least
respect human rights.42 There is increasing support for the view that non-State collective
entities have a binding obligation to obey jus cogens and not to engage in conduct
amounting to international crimes (see, for example, A/HRC/19/69, para. 106). Along with
that come links between human rights and corporate social responsibility, which
incentivizes companies to take into account principles that include human rights, labour, the
environment and anti-corruption.
110. Under current best practice, unlawful conduct on the part of private security
providers is addressed either directly through international corporate social responsibility
frameworks and voluntary, self-regulatory codes of conduct aimed at implementing the
corporate responsibility to respect human rights, or by holding States accountable where
they fail to provide realistic options to hold private security providers and individual
personnel accountable under domestic civil and criminal law.
111. Of the voluntary frameworks perhaps most notable is the International Code of
Conduct for Private Security Service Providers, which seeks to facilitate access to remedy
through the creation of its independent governance and oversight mechanism, as well as the
39 See the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, principles
6, 11(f) and 22.
40 R. Steinhardt, “Weapons and the human rights responsibilities of multinational corporations”, in
Weapons Under International Human Rights Law, S. Casey-Maslen, ed. (Cambridge, Cambridge
University Press, 2014), pp. 509 and 513-514.
41 Kadic v. Karadzic, 70 F.3d 232 (United States Court of Appeals, Second Circuit, 1995), cert. denied
518 US 1005 (1996); Sosa v. Alvarez-Machain, 542 US 692, 725 (2004), p. 748.
42 N. Pillay “The corporate responsibility to respect: a human rights milestone”, International Labour
and Social Policy Review (Geneva, 2009), pp. 63-68.
forthcoming complaints process.43 Whether or not the complaints procedure of the
International Code of Conduct for Private Security Service Providers’ Association will be
able to provide effective access to remedies for victims of human rights abuse by private
security providers remains to be seen.
3. Accountability under domestic law
112. Human rights abuses perpetrated by private security personnel can be redressed
under criminal law and, in some instances, as part of tort law or the law of delict. That can
raise questions regarding the legal personality of companies and the different doctrines
applied when establishing corporate liability. Some States, such as the United Kingdom,
have explicitly codified corporate criminal liability, while others rely on general tort law
and the law of delict to institute civil claims.
113. Nothing should detract from the pursuit of personal criminal liability of the
individual perpetrator of the abuse. However, vice versa, the fact that sufficient evidence
cannot be gathered to prove a criminal act does not mean that an abuse has not occurred.
114. In certain circumstances the concept of vicarious criminal liability can be helpful. A
corporation can be criminally responsible for conduct, distinct from the owners, agents or
employees of the corporation. The application of vicarious liability transfers the criminal
responsibility for an offence from an agent or employee to the corporation itself, while the
agent or employee remains responsible for the crime committed. Essential elements of
corporate criminal liability include a special relationship between the agent or employee
and the corporation (namely, employment) and the requirement that the crime must have
been committed in the performance of duties in terms of that relationship. Attention must
also be given to considerations of the liability of parent companies for abuses committed by
their subsidiaries.44
115. It should be noted that, given the inherent risks of abuse of rights associated with
security work, close attention should be paid to the trigger of liability concerned. It can be
argued that private security providers should be held to a modified standard of strict
liability as might be expected from a company, for example, handling hazardous waste.
Laws should not grant a company the right to exculpate itself from intentional or grossly
negligent excessive force resulting in death or serious injury, even if the company can show
that the employee concerned was appropriately selected and trained. Without that standard
of liability, victims will often have no effective recourse, as the individual perpetrator is
often devoid of means.
116. Since many private security providers operate on a global level, the extraterritorial
applicability of human rights law, and specifically human rights treaties, is crucial to the
regulation of the sector. In the context of business, extraterritorial jurisdiction has in one
way or another made its way into a number of policy domains that include anti-corruption,
securities regulation, environmental protection and more general civil and criminal
jurisdictions, but not in relation to business and human rights (see A/HRC/14/27, para.
46).45 However, international law does not prevent States from extending their jurisdiction
43 The processes put in place for the reporting, monitoring and assessment of members’ performance in
accordance with the code of conduct were established under article 12 of the Association.
44 See G. Skinner, “Parent company accountability: ensuring justice for human rights violations”
(International Corporate Accountability Roundtable, November 2015). Available from
http://icar.ngo/wp-content/uploads/2015/06/PCAP-Report-2015.pdf.
45 See J. Zerk, “Extraterritorial jurisdiction: lessons for the business and human rights sphere from six
regulatory areas”, Corporate Social Responsibility Initiative Working Paper No. 59 (Cambridge, MA,
to include such issues, provided there is a recognized basis. Moreover, the Guiding
Principles on Business and Human Rights highlight that there are strong policy reasons for
home States to set out clearly the expectation that businesses respect human rights abroad,
especially when the State itself is involved in or supports those businesses. The reasons
include ensuring predictability for business enterprises by providing coherent and
consistent messages, and preserving the State’s own reputation.46 While the extraterritorial
scope of a prominent national example, the Alien Tort Statute in the United States, has
recently been limited, there are a number of other potential avenues, such as in the
European Union, that allow for extraterritorial claims to be pursued against corporations for
human rights abuses.47
4. Internal accountability mechanisms
117. As part of the due diligence aspect of the Guiding Principles on Business and
Human Rights, companies are encouraged to set up internal grievance mechanisms, also
referred to in some instances as “operational-level” or “project-level” grievance
mechanisms. The mechanisms are usually set up to allow those that are affected by the
actions of the company to bring allegations of non-compliance with internal policies and
procedures to the attention of the company. Several of the voluntary initiatives, including
the International Code of Conduct for Private Security Service Providers, also require
companies to set up internal grievance mechanisms to monitor compliance with the
principles of the initiatives, considered to be external unless incorporated into those of the
company.48 Notwithstanding the potential of internal grievance mechanisms to offer another
course of redress to victims of corporate human rights abuse, the functioning of those
mechanisms has met with great scepticism in the ranks of civil society.
118. Most internal grievance mechanisms currently require claimants to sign a legal
waiver that keeps victims from pursuing further legal action.49 While the use of such
grievance mechanisms has produced some successes in particular circumstances, human
rights abuses of certain magnitudes, including violations of the right to life, cannot be
adequately addressed through an internal grievance mechanism, and in such cases legal
waivers can represent a deliberate impediment to accountability.
IV. Conclusions
119. The use of force by private security providers is not uncommon, and can be a
necessary element to some of the services they provide. However, the unregulated or
improper use of force by such providers can severely jeopardize the protection of the
right to life. Where the use of force by private security providers is regulated under
the domestic laws and regulations of States that specifically concern private security,
John F. Kennedy School of Government, Harvard University, 2010). Available from
www.hks.harvard.edu/m-rcbg/CSRI/publications/workingpaper_59_zerk.pdf.
46 See Guiding Principles on Business and Human Rights, principle 2.
47 J. Kirshner, “A call for the EU to assume jurisdiction over extraterritorial corporate human rights
abuses”, Northwestern Journal of International Human Rights, vol. 13, No. 1 (2015), pp. 1-26.
48 See International Code of Conduct for Private Security Service Providers, article 66.
49 See “Rape victims must sign away rights to get remedy from Barrick”, MiningWatch (30 January
2013). Available from http://miningwatch.ca/news/2013/1/30/rape-victims-must-sign-away-rights-
get-remedy-barrick. See also K. McVeigh, “Canada mining firm compensates Papua New Guinea
women after alleged rapes”, Guardian, 3 April 2015. Available from
www.theguardian.com/world/2015/apr/03/canada-barrick-gold-mining-compensates-papua-new-
guinea-women-rape.
there is a need to ensure that those laws are in line with international human rights
standards and best practice regarding the use of force. More generally, private
security providers must be subject to oversight and accountability from the State.
120. Where States directly contract security services from a private security
provider, the standards and level of the State’s responsibility for the actions of its
agents must remain unaffected. Where private corporations or individuals contract a
private security provider, or where corporations provide their own security, the
standards remain effectively the same, a fact that should be clarified by national
legislation. States must impose on private security providers and their personnel a
duty of precaution concerning recruitment, training, equipment, planning, command
and control, and reporting. Moreover, in circumstances they assess as likely to require
the use of force, private security personnel have a responsibility to inform State law
enforcement, and to follow any instructions they are given.
121. It is vital that States, the security industry and civil society all take steps to
address the data gap with respect to lethal incidents relating to the use of force by
both State law enforcement and private security personnel. Without reliable
information about the use of force by all entities potentially involved it will be difficult
for States and the international community to assess the impact of the privatization of
security on the full realization of the right to life by all, without discrimination.
V. Recommendations
Recommendation to the United Nations
122. The Human Rights Council should continue to pay significant attention to the
impact of private security providers on a broad range of human rights, including the
right to life, and to underline the important principle that the outsourcing of security
provision must in no way lower standards of protection.
Recommendation to regional human rights mechanisms
123. Where they do not already exist, regional human rights mechanisms should
consider establishing forums or frameworks to allow greater scrutiny of the activities
of the security sector in the regional context.
Recommendations to States
124. States should keep registers of and issue licenses to private security providers
operating within their borders, or domiciled within their territory and operating
across borders, that have demonstrated compliance with requirements established by
legislation.
125. States should actively participate in and engage with international
organizations and multilateral and multi-stakeholder processes aimed at improving
the monitoring and regulation of private security provider activities.
126. States should, where necessary, engage in a process of legal and policy reform
to achieve the following:
(a) Clarify the responsibilities of private security providers in relation
to human rights when operating both locally and abroad, particularly when the
private security provider is registered or domiciled within its territory;
(b) Require that all private security providers have vetting and
training procedures that include human rights norms and principles;
(c) Require that appropriate weapons training is mandatory for all
private security personnel;
(d) Implement strict gun control regulations with regard to private
security personnel, both on and off duty;
(e) Require private security providers based or operating within their
territory to bring company policies in line with international norms and
standards;
(f) Implement a system of mandatory reporting of lethal incidents,
whether caused by State law enforcement or private security personnel and,
where one does not already exist, establish a transparent system for collecting,
analysing and publishing the data thus generated;
(g) Pass or amend laws to ensure that private security personnel who
are found to have used excessive force are criminally accountable and that, in
such circumstances, the private security provider itself is held to a standard of
strict vicarious liability that ensures victims receive compensation;
(h) Clarify their responsibilities in monitoring effectively the use of
force by private security providers and providing access to remedy for victims
of corporate human rights abuses, particularly in cross-border operations, and
ensure that there are no barriers to access to remedy for victims of corporate
human rights abuse, both procedurally and in relation to legal bases.
127. Where the State itself is directly contracting security services from a private
security provider, it must conduct due diligence with respect to the private security
provider’s human rights record, and pay particular attention to procedures and
equipment relating to the use of force; States should also engage robust mechanisms
to monitor the performance of the private security provider in that regard.
Recommendations to private security providers
128. All private security providers should operate in a transparent fashion and
publish reports on their activities; they should conduct investigations into allegations
of human rights abuses in a transparent and thorough manner.
129. In particular, private security providers should record and publish data on
incidents involving the use of force by their personnel.
130. All private security providers should actively participate in and engage with
initiatives aimed at fostering respect for human rights among their personnel,
including awareness-raising and capacity-building; private security providers are
encouraged to align internal policies with international human rights norms and
standards, and to put in place the protocols necessary.
131. All private security providers must engage in vetting and training exercises that
include a human rights-based approach; they should monitor the use and safekeeping
of weapons by both on and off-duty personnel. They should implement oversight and
monitoring mechanisms, especially in relation to the use of force by their personnel.
132. While private security providers should set up internal grievance mechanisms
for injured parties of misconduct or negligence on the part of the provider, such
mechanisms should not be used to address serious abuses of human rights, including
violations of the right to life, and must not require applicants to waive their right to
seek a judicial remedy where applicable.
133. All private security providers should actively participate in and engage with
international multi-stakeholder initiatives aimed at improving the human rights
performance of the security sector.
Recommendations to corporations contracting private security providers
134. The provision of security, especially in circumstances where the use of force is a
likely component of its provision, requires particular skill sets and hundreds of hours
of training. Any non-State entity providing that service must be able to demonstrate
that its personnel have been properly vetted, trained and equipped.
135. When tendering a contract for security services, corporations should require
that the private security providers they contract abide fully with national regulations
regarding private security, and give weight to accreditation by international certifying
bodies. They must also exercise due diligence in monitoring the private security
providers’ activities once contracted to ensure respect for international human rights
standards.
136. Contracting corporations must in no way impede oversight of private security
providers they contract by external bodies, either during routine conduct or,
particularly, during the investigation of alleged abuses.
Recommendations to civil society organizations and academia
137. Consider innovative ways in which civil society can help to fill the data gap
concerning the incidence of the use of force both by State security personnel and
private security providers, while at the same time encouraging the State to fulfil its
obligations in that regard.
138. Scholars should consider how the outsourcing of security creates
discriminatory hierarchies of public security that adversely affect human rights, and
whether those hierarchies amount in practice to a failure of the State in its duty to
protect the right to life of all of its citizens.