33/43 Report of 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
Document Type: Final Report
Date: 2016 Jul
Session: 33rd Regular Session (2016 Sep)
Agenda Item: Item3: Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development
GE.16-11943(E)
Human Rights Council Thirty-third 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 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
Note by the Secretariat
The Secretariat has the honour to transmit to the Human Rights Council the report of
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. The report is part of the
Working Group’s ongoing global study of national laws and regulations relating to private
military and security companies. The present report focuses on the laws and regulations of
six countries of the Commonwealth of Independent States, four countries in the Asia and
Pacific region and the United States of America in North America. The global study aims to
assess existing national laws regarding private military and security companies and their
effectiveness in protecting human rights and promoting accountability for violations. It also
aims to identify any commonalities, good practices and regulatory gaps that may exist.
United Nations A/HRC/33/43
General Assembly
Report of 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
Contents
Page
I. Introduction ...................................................................................................................................... 3
II. Activities of the Working Group ...................................................................................................... 3
A. Twenty-fifth to twenty-seventh sessions of the Working Group ............................................. 3
B Communications ...................................................................................................................... 4
C Country visits ........................................................................................................................... 4
D Other activities of Working Group members ........................................................................... 4
III. Research on national legislation concerning private military and security companies .................... 4
A. Introduction ............................................................................................................................. 4
B. Analysis ................................................................................................................................... 5
C. Accountability and remedies ................................................................................................... 18
IV. Conclusions and recommendations .................................................................................................. 21
I. Introduction
1. The present report covers the activities of 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 since its previous report to the Human Rights Council
(A/HRC/30/34 and Add.1). In addition, it contains the results of the Working Group’s study
on national legislation concerning private military and security companies in Eastern
Europe, the Asia and Pacific region and North America.
2. The report is submitted pursuant to Commission on Human Rights resolution
2005/2, by which the Commission established the mandate of the Working Group, and
Human Rights Council resolution 30/6, by which the Council further extended the mandate.
3. The Working Group comprises five independent experts: Patricia Arias (Chile),
Elzbieta Karska (Poland), Anton Katz (South Africa), Gabor Rona (United States of
America) and Saeed Mokbil (Yemen). Ms. Karska served as Chair-Rapporteur for the
period January 2015 to May 2016; Ms. Arias holds the Chair until 31 October 2016.
4. For the purpose of the present report, a private military and security company is
defined as “a corporate entity which provides, on a compensatory basis, military and/or
security services by physical persons and/or legal entities”. Military services refer to
“specialized services related to military actions, including strategic planning, intelligence,
investigation, land, sea or air reconnaissance, flight operations of any type, manned or
unmanned, satellite surveillance, any kind of knowledge transfer with military applications,
material and technical support to armed forces and other related activities”. Security
services refer to “armed guarding or protection of buildings, installations, property and
people, any kind of knowledge transfer with security and policing applications,
development and implementation of informational security measures and other related
activities”.1
II. Activities of the Working Group
A. Twenty-fifth to twenty-seventh sessions of the Working Group
5. The Working Group held three sessions from 1 July 2015 to 31 to April 2016.
During its twenty-fifth session, held in New York from 20 to 24 July 2015, it convened an
expert panel on foreign fighters. It also met with United Nations officials on the adoption of
some of its recommendations on the use of private military and security companies by the
United Nations, with non-governmental organizations and with representatives of the
private military and security industry.
6. At its twenty-sixth session, held in Geneva from 30 November to 4 December 2015,
the Working Group convened an expert panel on private military and security companies,
met with representatives of Member States on country visits and issues concerning the
mandate as well as with a representative of the private military and security industry.
7. At its twenty-seventh session, held in Geneva from 11 to 15 April 2016, the
Working Group convened an expert panel on foreign fighters and the evolution of
mercenarism.
1 Draft convention on private military and security companies (see A/HRC/15/25, annex).
B. Communications
8. Since its previous report to the Human Rights Council, the Working Group sent
communications jointly with other special procedures mandate holders to the Governments
of Australia and Nauru concerning asylum seekers detained in the latter country.2
C. Country visits
9. The Working Group conducted official visits to Tunisia from 1 to 8 July 2015
(A/HRC/33/43/Add.1), to Belgium from 8 to 12 October 2015 (A/HRC/33/43/Add.2), to
Ukraine from 14 to 18 March 2016 (A/HRC/33/43/Add.3) and to European Union
institutions from 25 to 28 April 2016 (A/HRC/33/43/Add.4).
D. Other activities of Working Group members
10. On 3 December 2015, Ms. Karska was a panellist at a public hearing in Brussels on
the use of private security companies in the context of European security and defence
organized by the Subcommittee on Security and Defence of the European Parliament
Committee on Foreign Affairs.
11. Ms. Arias participated in an expert consultation on enforced disappearances and
non-State actors in Rabat, Morocco, on 7 February 2016, organized by the Working Group
on Enforced or Involuntary Disappearances and the National Human Rights Council of
Morocco. She was invited by the Office of the United Nations High Commissioner for
Human Rights in Guatemala to a meeting to discuss the situation of private security
companies in the country, in particular the progress of related research.
12. Mr. Mokbil represented the Working Group at the Regional Conference on Private
Military and Security Companies, held in Addis Ababa from 11 to 12 November 2015,
co-hosted by the Swiss Federal Department of Foreign Affairs, the International Committee
of the Red Cross, Addis Ababa University and the Geneva Centre for the Democratic
Control of Armed Forces. He served as a panellist on the topic “Regional and international
perspectives: the African Union and the work of the United Nations”.
13. Mr. Rona Served as a commentator for a discussion on the domestic side of the
monopoly on the use of force at an event organized by the Friedrich Ebert Foundation in
New York on 10 March.
III. Research on national legislation concerning private military and security companies
A. Introduction
14. The Working Group continued its global study of national laws regarding private
military and security companies to assess their effectiveness in protecting human rights and
promoting accountability for violations. The study aims to identify any commonalities,
good practices and regulatory gaps that may exist.
2 Summaries of the communications will be included in a report to be submitted to the Human Rights
Council at its thirty-third session.
15. The present report focuses on the laws and regulations of six countries of the
Commonwealth of Independent States (Azerbaijan, Kazakhstan, Kyrgyzstan, the Republic
of Moldova, Tajikistan and Uzbekistan), four countries in the Asia and Pacific region
(Australia, New Zealand, Nauru and Papua New Guinea) and the United States of America
in North America.3
16. In its 2015 report to the Human Rights Council (A/HRC/30/34), the Working Group
focused on the laws and regulations of eight countries in Central America and the
Caribbean,4 eight countries in South America5 and four countries in Western Europe.6 In its
2014 report (A/HRC/27/50), it covered eight francophone African States7 and eight Asian
States8 while in its 2013 report (A/HRC/24/45), it focused on 13 Anglophone African
States.9
17. The Working Group hopes that its global study will result in guidance that will help
Member States to regulate the growing number of private military and security companies.
The national laws on such companies were analysed in the present report on the basis of the
following elements: (a) scope of the legislation; (b) licensing, authorization and
registration; (c) selection and training of personnel; (d) permitted and prohibited activities;
(e) rules on the acquisition of weapons; (f) use of force and firearms; (g) accountability for
violations and remedies for victims; and (h) ratification of the International Convention
against the Recruitment, Use, Financing and Training of Mercenaries.
B. Analysis
1. Commonwealth of Independent States
Scope of the legislation
18. All six countries in the present study have enacted criminal legislation to regulate
private military activities, most commonly within their Criminal Code. Of the six countries,
Azerbaijan, Kazakhstan, Kyrgyzstan and the Republic of Moldova expressly prohibit the
formation and use of mercenaries. The term “mercenary” is not employed under the law in
Tajikistan, but the prohibition on the “organization of an illegal armed formation”10 may
serve a similar purpose. Uzbekistan does not have an express restriction on the formation of
private military companies, but its Criminal Code restricts participation in armed conflict or
military actions for the purpose of obtaining money or personal benefits.11
3 Australia and New Zealand, along with the United States of America, are members of the Western
European and Others Group in the United Nations, one of the geopolitical regional groups into which
United Nations Member States have unofficially divided themselves.
4 Costa Rica, Cuba, El Salvador, Guatemala, Honduras, Mexico, Nicaragua and Panama.
5 Argentina, Bolivia (Plurinational State of), Brazil, Chile, Colombia, Ecuador, Peru and Uruguay.
6 France, Hungary, Switzerland and the United Kingdom of Great Britain and Northern Ireland.
7 Burkina Faso, Cameroon, Côte d’Ivoire, Democratic Republic of the Congo, Mali, Morocco, Senegal
and Tunisia.
8 China, India, Malaysia, Pakistan, Philippines, Singapore, Sri Lanka and United Arab Emirates.
9 Botswana, the Gambia, Ghana, Kenya, Lesotho, Mauritius, Namibia, Nigeria, Sierra Leone, South
Africa, Swaziland, Uganda and Zimbabwe.
10 Article 185 of the Criminal Code.
11 Section 154 of the Criminal Code.
19. Almost all of the reviewed legislation includes provisions for the particular activities
related to private military companies. Moreover, in the Republic of Moldova12 and
Uzbekistan,13 the intentional killing and infliction of bodily injury for profit or mercenary
motives shall be punishable by law.
20. The scope of legislation in the countries reviewed generally covers only private
security companies, although in Kazakhstan, the legislation covers both private and public
security organizations. Under the law in Azerbaijan, certain public places (e.g., the National
Bank, various administrative sites and oil and gas export infrastructure) may be protected
only by State security services, not private security companies.14 In Tajikistan, there do not
appear to be any specific laws on private security companies. In Uzbekistan, the laws on
private security companies have undergone dramatic changes since the adoption of a decree
on 24 January 2014,15 which prohibited non-governmental organizations and individuals
from engaging in security activities.
Licensing, authorization and registration
21. Apart from Tajikistan and Uzbekistan, all the other countries have provided for a
regulatory framework for the licensing and registration of private security services. In
Azerbaijan, a licence is required to provide private security services16 while a licence can be
obtained for providing both private security services and private detective services in
Kazakhstan17 and the Republic of Moldova.18 Laws in both Azerbaijan and the Republic of
Moldova stipulate that foreign security organizations are not allowed to conduct operations
within their territories; with amendments to the law on terrorism, Azerbaijan has further
toughened the penalties on involvement in foreign mercenary activities.
22. In Kyrgyzstan, under the current law private organizations intending to carry out the
security functions listed in the law must be established especially for that purpose.19 The
Ministry of Internal Affairs is proposing to introduce an amendment to the law which
imposes stricter requirements, including provisions prohibiting those without experience in
law enforcement and relevant training, as well as persons who have been convicted of
crimes, suffer from mental illness and/or are addicted to alcohol or drugs, from working as
private guards and requiring those responsible for such groups to have higher education.
However, the amendment also proposes to replace the licensing regime with a registration
procedure.
23. While most of the reviewed countries have regulatory guidelines, gaps in
implementation and enforcement have been identified. These include the lack of a clear and
publicly accountable body dedicated to licensing, a mechanism for monitoring the post-
licensing activities of private security companies and a national registration system for such
companies. The Working Group is of the view that a standard set of human rights-based
criteria for licensing, a national registration system and a single expert body dedicated to
licensing and monitoring the activities of private security companies are desirable to exert
effective control over this industry.
12 Articles 151 and 152 of the Criminal Code.
13 Chapters 1 and 2 of section one of the Criminal Code.
14 Decree of the Cabinet of Ministers No. 32 of 7 February 2008.
15 Regulation of the Cabinet of Ministers No. 16 of 24 January 2014.
16 Article 17 of Law No. 266-IIIG.
17 Article 5 of Law No. 85-II; Law No. 202-V of 16 May 2014; Government Decree No. 1421;
Government Decree No. 909.
18 Article 5 of Law No. 283-XV; articles 8 (19) and 13 (1) of Law No. 451.
19 Article 14 of Law No. 35.
Selection and training of personnel
24. Except for Tajikistan and Uzbekistan, all the other countries have established
eligibility criteria for the recruitment of private security guards.20 A clean criminal record is
standard, but some countries permit convictions for less serious crimes. For example, the
laws of Kazakhstan and Kyrgyzstan bar individuals with a prior criminal record, while in
Azerbaijan, only individuals with a past felony conviction are disqualified. The provisions
also vary in relation to the age requirement: individuals must be at least 18 years old to
qualify as a security guard in Kyrgyzstan and the Republic of Moldova while the minimum
age requirements are 19 and 20, respectively, in Kazakhstan and Azerbaijan. Kyrgyzstan
also excludes individuals with incapacity due to a physical or mental disability, while
Azerbaijan requires Azerbaijani citizenship as well as medical evidence of the absence of
psychiatric disorders.
25. Azerbaijan, Kazakhstan, Kyrgyzstan and the Republic of Moldova also provide
information on the qualifications and training requirements for private security guards.21 A
special training or preparatory course is required in all four countries. In addition,
Azerbaijan requires the completion of mandatory military service while in Kyrgyzstan, the
training can be waived with three years of experience in law enforcement.
26. In Azerbaijan, the training course must be organized by State education centres,
while in Kazakhstan and Kyrgyzstan, the training can be carried out by specialized non-
State educational or training centres that have been approved and licensed by the
Government. In the Republic of Moldova, certified educational institutions can conduct the
qualification courses but training, retraining and accreditation must be obtained from the
Ministry of Internal Affairs.
27. The analysis shows that while most countries have established a framework for the
vetting and training of private security company personnel, training on human rights is not
provided. The Working Group urges the mandatory inclusion of human rights in the
training curricula to build awareness and respect for international standards as well as to
minimize the risk of violations.
Permitted and prohibited activities
28. Among the six reviewed countries, only the legislation of Azerbaijan and
Kazakhstan provide guidelines on the types of services private security companies are
permitted to provide. The laws of Kazakhstan contain general and broad provisions22 while
those of Azerbaijan list the permitted services in detail.23
29. Regarding prohibited activities, all the reviewed laws apart from those of Tajikistan
and Uzbekistan contain restrictions on private security companies. The laws of Azerbaijan,
Kyrgyzstan and the Republic of Moldova focus on the protection and privacy of persons.
The laws of Azerbaijan and Kyrgyzstan require private security companies to cooperate
fully with the State and they may not “withhold information on committed or planned
crimes from law enforcement authorities”.
20 Azerbaijan: Law No. 266-IIG; Kazakhstan: Government Decree No. 1421; Kyrgyzstan: article 14-2
of Law No. 35; Republic of Moldova: Law No. 283-XV.
21 Azerbaijan: Law No. 266-IIG; Kazakhstan: Government Decree No. 1126; Kyrgyzstan: Law No. 35;
Republic of Moldova: article 24 of Law No. 283-XV and Government Regulation No. 667 of 8 July
2005.
22 Article 4 of Law No. 85-II.
23 Article 5 of Law No. 266-IIG.
30. The ambiguity concerning which activities are permitted, the difference in scope of
prohibited activities and the lack of a clear dividing line between the functions of private
security companies and law enforcement authorities increase the risks of ineffective control
of private security company activities and potential abuse by those companies. This
situation gives rise to challenges of enforcement and accountability and, in turn, to the
protection of fundamental human rights and the availability of remedies for violations. It is
therefore essential to enact more specific legislation regarding the role and functions of
private security companies and to prohibit the involvement of company personnel in
combat or military activities in order to ensure compliance with international human rights
law.
Rules on the acquisition of weapons
31. Legislation in Azerbaijan, Kazakhstan, Kyrgyzstan and the Republic of Moldova
contain provisions for the use of weapons by private security organizations. The legislation
of all four countries includes a list of devices approved by the Government, including
protective and technical equipment and lethal and non-lethal weapons. In Azerbaijan, the
regulations cover both the supply of and the demand for weapons.24
32. In Kazakhstan, Kyrgyzstan and the Republic of Moldova, legislation stipulates
licensing and registration procedures for the use of weapons by private security companies.
In Kazakhstan, acquisition of “service weapons” is subject to a licence issued by the
Ministry of the Interior.25 In Kyrgyzstan, private security organizations or security and
investigative departments of private enterprises may also acquire firearms subject to a
licence issued by internal affairs authorities; the firearms thus acquired must be registered
with the internal affairs authorities within two weeks of their purchase.26 In the Republic of
Moldova, the permits to use weapons are issued by the Ministry of Internal Affairs or local
police authorities.27 The Ministry conducts regular recertification of security personnel to
determine their aptitude to use force and should such recertification fail, the Ministry may
withdraw its permission and forbid the individuals in question from using force and related
devices.28
33. On the other hand, legislation in Tajikistan and Uzbekistan contains only general
provisions regarding the use of weapons. The Criminal Codes of Tajikistan and Uzbekistan
both restrict activities such as the illegal production, repair, purchase, sale, carrying,
keeping and transportation of weapons without due authorization;29 the Criminal Code of
Uzbekistan further specifies the types of weapons, including firearms, ammunition,
explosive substances and explosive assemblies.30
34. There are elements of good practice in some of the laws, for example, the regulation
covering both the supply of and demand for weapons in Azerbaijan, the safety standard
requirements on private security company operations in Kazakhstan and the monitoring and
recertification process in the Republic of Moldova. All these could be applicable in other
States, and it is desirable to create a consistent and comprehensive control mechanism
throughout the region. Finally, the national legislation of only two countries contains
24 Article 7 of Law No. 422-IG of 30 December 1997.
25 Articles 6 and 10 of Law No. 339-I of 30 December 1998; Government Decree No. 1176 of 3 August
2000.
26 Articles 14 and 17 of Law No. 49 of 9 June 1999 (as amended); in accordance with Law No. 12 of
3 March 1997; Law No. 35; Regulation No. 532; schedules to Regulation No. 532 of 20 August 2003.
27 Article 32 of Law No. 283-XV.
28 Articles 31 and 32 of Law No. 130 of 8 June 2012; Schedule 4 to Regulation No. 667.
29 Articles 195 and 196 of the Criminal Code.
30 Article 248 of the Criminal Code.
provisions which restrict the use of weapons and impose legal consequences for their
violation. It is desirable that all countries develop legal and criminal restraints on private
security company personnel so as to ensure better compliance with standards under
international human rights law.
Use of force and firearms
35. Only three of the six countries have enacted legislation restricting the use of force by
private security personnel: Azerbaijan, Kyrgyzstan and the Republic of Moldova. The law
in Azerbaijan contains general provisions concerning private security companies, whereby
“special equipment”, that is certain kinds of weapons and protective equipment, may be
used only in “extreme circumstances”.31
36. The laws of Kyrgyzstan and the Republic of Moldova specify the circumstances
under which the use of firearms or special devices is justified: firearms may be used in
defence against an impending attack that threatens human life or health, against a group
attack or armed assault against protected property, to restrain individuals showing armed
resistance, or to fire a warning shot in the air. Special equipment may be used only to repel
immediate attacks, to restrain an offender attempting to flee from a crime scene, or when
“non-violent preventive actions did not result in the desired outcome”. The legislation
includes procedures and mandatory actions to be taken before and after the use of force.
The law of Kyrgyzstan requires every instance of firearm use to be reported immediately to
local internal affairs authorities. Law in the Republic of Moldova includes further
provisions: the security or law enforcement agents must issue a prior warning of the
intention to use force.
37. That only three of the six analysed legal regimes contain provisions regarding the
use of force by private security company personnel demonstrates that the law in this region
is quite undeveloped. To protect fundamental human rights, notably the right to life and the
right to security, there must be a clear distinction between the activities of private security
companies and State authorities and a prohibition on the involvement of private security
company personnel in combat and military activities. Legislation should also provide for
any differences in what is permitted during peacetime and in the course of armed conflict as
well as regulation of the involvement of foreign personnel in private security companies or
in the participation of those companies in operations abroad. Finally, the provisions
regarding the right to self-defence and the conditions under which the use of force is
justified should be further elaborated so as to ensure that the use of force is mandated,
proportional and restricted to what is necessary, in accordance with international law.
Accountability for violations and remedies for victims
38. Research reveals that in all six reviewed countries there is a government department
with similar functions that is responsible for regulating the activities of private security
companies; this is essentially the Ministry of Internal Affairs. In some countries, the
ministries work in cooperation with another State body: the Prosecutor’s Office in
Kazakhstan, the Chamber of Licensing in the Republic of Moldova, the National Guard in
Tajikistan and the First Deputy Prime Minister in Uzbekistan.
39. However, only four of the six countries have enacted legislation providing for
regulatory measures. The laws in Kazakhstan and Tajikistan contain general provisions,
stating that the regulatory bodies would conduct “surveillance”32 and “operational-
31 Articles 14 and 15 of Law No. 226-IIG; Regulation of the Cabinet of Ministers No. 127 of 13 August
2007 (as amended).
32 Articles 1 (2) and 22 of Law No. 85-II; articles 1 (75-1) and (75-3) of Law No. 377-IV.
investigative activities”,33 respectively. In Kyrgyzstan and the Republic of Moldova, the
legislation specifies that the regulatory bodies are entitled to perform “scheduled and
unscheduled inspections” to determine compliance with licensing terms and other
applicable regulation.34
40. All the analysed laws also contain criminal offences relating to mercenary activities.
These are found in the Criminal Codes of Azerbaijan,35 Kazakhstan,36 Kyrgyzstan,37 the
Republic of Moldova,38 Tajikistan39and Uzbekistan40 (see Schedule 2). The sanctions
mainly take the form of imprisonment (up to life imprisonment, or even a death sentence in
extreme situations), but the laws vary in the types of “indirect” mercenary activities which
they criminalize. Firstly, in all countries except Uzbekistan, the creation, financing or use of
mercenary groups in armed conflicts entails imprisonment for between 4 and 12 years.
Participation in mercenary activities carries a slightly lighter sentence of imprisonment for
between 3 and 10 years, except in Tajikistan where participation in mercenary activities in
an armed conflict carries the harsh sentence of 12 to 20 years’ imprisonment. In three of the
six countries — Kazakhstan, Kyrgyzstan and Tajikistan — the involvement in mercenary
activities entailing the abuse of official powers the recruitment of young people constitute
separate offences and carry a sentence of 7 to 15 years’ imprisonment in all three countries.
41. Finally, three countries — Kazakhstan, the Republic of Moldova and Uzbekistan —
also criminalize mercenary activities corresponding to the harm they cause. The laws
provide different prison terms depending on the degree of injury to the victims, that is the
infliction of bodily harm, serious harm, or intentional killing “for mercenary motives. In
Kazakhstan, some mercenary activities are capital crimes.
42. In addition to the criminal offences described above, the legislation in some
countries also has administrative and international elements. In Kazakhstan, violation of the
procedural requirements and restrictions on private security organizations constitutes an
administrative offence.41 As for the international law elements, mercenary activity is
regarded as a war crime in Azerbaijan and in Tajikistan, the intentional use of force aimed
at non-combatants or that which results in murder, inhuman treatment or grave suffering in
the course of an internal or international armed conflict is regarded as an intentional
violation of international humanitarian law. Both are directly punishable under the Criminal
Codes of these countries.42
43. While there is a designated body for regulating private security company activities
in all the reviewed countries, the analysis reveals a lack of specific rules on the content of
monitoring mechanisms, which might result in weak enforcement in practice. Most of the
legislation contains similar provisions in relation to the type and nature of the criminal
offences related to mercenary activity. Given the transnational nature of private military
and security company activities, the Working Group is of the view that the further
standardization of accountability mechanisms is desirable, so as to ensure accountability of
private military and security companies regardless of the location of their operations. The
general lack of legal and practical remedies for victims should also be addressed.
33 Law No. 45 of 12 April 1994. 34 Kyrgyzstan: articles 3 and 6 of Law No. 35; Republic of Moldova: article 31 of Law No. 283-XV.
35 Article 114 of the Criminal Code.
36 Articles 170 and 267 of the Criminal Code.
37 Articles 229 and 375 of the Criminal Code.
38 Articles 141, 151 and 152 of the Criminal Code.
39 Articles 185, 195, 196 and 401 of the Criminal Code.
40 Articles 97, 104, 105 (chapter 1 of section one) and 154 of the Criminal Code.
41 Article 470 of the Administrative Offences Code of Kazakhstan; Law No. 85-II.
42 Article 114 of the Criminal Code of Azerbaijan; article 403 of the Criminal Code of Tajikistan.
Ratification of the International Convention against the Recruitment, Use, Financing
and Training of Mercenaries
44. Three of the six reviewed States are parties to the International Convention against
the Recruitment, Use, Financing and Training of Mercenaries: Azerbaijan, the Republic of
Moldova and Uzbekistan. Azerbaijan ratified the Convention on 4 December 1997, while
the accession of the Republic of Moldova and Uzbekistan took place on 28 February 2006
and 19 January 2008, respectively.
45. Although Tajikistan is not a signatory to the Convention, it is a criminal offence in
Tajikistan to intentionally violate international humanitarian law.43
46. While some of the countries explicitly prohibit mercenary activities and have
enacted criminal legislation regarding private military companies, there is very little
reference to the international standards in any of the legislation reviewed. This raises
concerns as to the commitment of those States to observe those standards. The Working
Group urges all States parties to incorporate the standards contained in the Convention into
their national legislation and encourages non-signatories to become parties, with a view to
enhancing accountability mechanisms for the fuller safeguard of human rights.
2. Asia and Pacific region and North America
47. The countries in these regions analysed for the study are Australia, Nauru,
New Zealand, Papua New Guinea and the United States of America.
Scope of legislation
48. The laws of all five countries cover private security companies and their activities.
Generally, there is no separate legislation concerning private military companies and
related services. Rather, the laws cover a variety of private security activities, from the
protection and patrolling of sites to the protection and guarding of persons, though the
range of activities differs.
Licensing, authorization and registration
49. In the United States, the primary entities in charge of coordinating the activities
related to the licensing and registration of private military and security companies at the
federal level are the Department of State and the Department of Defense.44 Individual states
may, however, adopt their own laws pertaining to registers and licensing.
50. In Australia, licensing is controlled by either the state or territory police, though the
Australian Security Industry Association regulates private security activities. The
Australian licensing authority is responsible for issuing and renewing security licences,
monitoring the licence holders and keeping the register of licences.
51. In Papua New Guinea, the Security Industries Authority issues licences to security
firms and grants permits to security officers and security guards.45 Nauru, through the
licensing authority, which is appointed by the Cabinet,46 must also keep a register of all
security licences granted.47
43 Article 40 of the Criminal Code.
44
National Defense Authorization Act, Public Law 110-181.
45 Security (Protection) Industry Act 2004, section 5 (1) (a).
46 Private Security Act 2012, section 10.
47 Ibid., section 31.
52. In New Zealand, the licences are provided by the Private Security Personnel
Licensing Authority (part of the Ministry of Justice).48 Every applicant must publish a
notice of the intention to make an application, and the Authority will notify the police of
every application for a licence or certificate.49 In addition, the Authority must notify the
Commissioner of Police in writing when a license/certificate is issued.50 The Authority
must hold a register of licensees and a register of certificate holders.51
Selection and training of personnel
53. The United States Congress established a legislative framework in the National
Defense Authorization Act requiring the Department of Defense, in coordination with the
Department of State, to be in charge of the licensing of private military and security
companies and to prescribe regulations on the selection, training, equipping and conduct of
personnel performing private security functions in an area of combat operations.52 With
regard to the training of the personnel, the geographic combatant commanders are in charge
of verifying that private security company personnel meet all the legal, training and
qualification requirements.53 Contractors authorized to accompany forces are required to
receive training regarding their status under international humanitarian law.54 At the
direction of Congress, the Department of Defense supported the development of a business
and management standard,55 now an international standard (ISO 18788) for private security
companies, known as PSC-1, which includes training and accountability measures.
Companies must implement the standard in order to compete for contracts.56 Australia and
New Zealand have also recognized and supported ISO 18788.
54. In the various state and territorial laws in Australia, a distinction is made between a
licence to employ security employees and a licence to carry out a security activity. There
are typically various categories of licence, depending on the kind of security activity the
holder of the licence is authorized to carry out.57 The licensing authority will grant the
licence if it is satisfied that the applicant is a fit and proper person and has the competencies
and experiences required. For that purpose, the applicant must have successfully completed
an approved training.
48 Private Security Personnel and Private Investigators Act 2010, section 87.
49 Ibid., sections 27 and 48.
50 Ibid., sections 33 and 53.
51 Ibid., section 97.
52 Ike Skelton National Defense Authorization Act for Fiscal Year 2011, Public Law 111-383; National
Defense Authorization Act for Fiscal Year 2010, Public Law 111-84; Duncan Hunter National
Defense Authorization Act for Fiscal Year 2009, Public Law 110-417; National Defense
Authorization Act for Fiscal Year 2008, Public Law 110-181. It should be noted that the National
Defense Authorization Act is not a permanent piece of legislation; it is passed on an annual basis and
can therefore change from year to year.
53 Department of Defense Instruction No. 3020.50 of 22 July 2009, Procedures, part 1, section (a) (2).
54 Department of Defense Instruction No. 3020.41 of 20 December 2011, enclosure 2 (3) (f).
55 American National Standards Institute, Management system for quality of private security company
operations-requirements with guidance, ANSI/ASIS PSC.1-2012.
56 Office of the Assistant Secretary of Defense for Logistics and Materiel Readiness, Private security
companies.
57 For example, the Security Industry Act in the Australian Capital Territory creates five types of licence
and establishes a register of those persons granted a licence, while the Act in New South Wales
creates three types of licence.
55. In Papua New Guinea, any person who wishes to carry out security services must
apply for a licence with the Security Industries Authority, which may issue three types of
licence for security service providers.58 A licence holder can then employ security officers
or security guards, who must hold a permit that enables the licence holder to employ
security officers or security guards in accordance with what is specified in the permit.59 The
Authority may grant a licence only if the applicant possesses the capabilities and experience
required for the particular class of licence applied for, and if the applicant (or its director,
secretary or chief executive officer in the case of a corporate body) is a fit and proper
person.60 The Authority is also entrusted by the relevant law with the mission to fix
minimum standards of training and discipline governing the holders of a licence or permit
and to formulate a code of conduct governing disciplinary matters.61 The research did not
reveal any code of conduct or regulation for training in Papua New Guinea.
56. In Nauru, the licensing authority will issue a licence if it is satisfied that the
applicant is an adult and a suitable person.62 In deciding upon the suitability of the
applicant, the authority will consider the applicant’s (or its director’s/executive officer’s)
character, financial position and any other matter prescribed by regulation.63 The applicant
must not have had a licence cancelled within the 12 months before the application is made
and the applicant must not have contravened the Act within five years before the
application is made.64
57. In New Zealand, the relevant law requires that security personnel be suitably
qualified and that they not behave in ways that are contrary to the public interest.65 The
licencing authority may grant the licence/certificate only if the applicant is of or above the
age of 18 years, there is no ground for disqualification and if the authority is satisfied that
the applicant is suitable to carry on the class of business for which he/she has applied.
58. The licensing regime in New Zealand screens out unsuitable people, such as those
with serious criminal convictions, and allows training requirements to be imposed. In
October 2013, training regulations for private security personnel came into force in New
Zealand and training is compulsory for both licence and certificate holders working as
crowd controllers, property guards and personal guards.66
Permitted and prohibited activities
59. The United States limits outsourcing of “inherently governmental functions”.
Federal law67 and policy68 define the scope of those functions that only governmental
personnel, and not contract employees, may perform. Inherently governmental functions
58 Security (Protection) Industry Act 2004, section 40.
59 Ibid., section 26.
60 Ibid., sections 43, 44 and 45.
61 Ibid., section 5.
62 Private Security Act 2012, section 13.
63 Ibid., sections 14, 15 and 16.
64 Ibid.
65 Private Security Personnel and Private Investigators Act 2010, section 3.
66 Ibid., section 114.
67 Federal Activities Inventory Reform Act of 1998, Public Law 105-270 and Federal Acquisition
Regulation of 2005.
68 Office of Management and Budget Circular A-76 and Office of Federal Procurement Policy, policy
letter 11-01.
were originally defined as activities that “are so intimately related to the public interest as
to require performance by Federal Government employees”.69
60. Subsequent regulations and guidance documents70 incorporate this language and
further elaborate on the use of the term. For example, in its policy letter 11-01 the Office of
Federal Procurement Policy establishes two tests for identifying inherently governmental
functions: (a) the nature of the function, i.e., the exercise of sovereign powers of the United
States that are governmental by their very nature, for example, arresting a person; and
(b) the exercise of discretion.71 According to the policy letter, inherently governmental
functions involve, for example, the interpretation and execution of the laws of the United
States so as “to significantly affect the life, liberty, or property of private persons”.72 The
policy letter provides a detailed list of examples of such functions.73 The list includes
combat,74 security operations performed in direct support of combat as part of a larger
integrated armed force,75 security operations performed in environments where, in the
judgment of the responsible federal official, there is significant potential for the security
operations to evolve into combat76 and security that entails augmenting or reinforcing
others (whether private security contractors, civilians or military units) that have become
engaged in combat.77
61. According to both the federal law and the policy regulation, contractors providing
special non-law enforcement security activities that do not directly involve criminal
investigations, such as prisoner detention78 and gathering information for or providing
advice, opinions, recommendations or ideas to federal government officials79 are not
inherently government functions. Department of Defense Instruction No. 3020.41 states
that contracted services may be utilized in applicable contingency operations for all
functions not inherently governmental;80 that inherently governmental functions and duties
are barred from private sector performance;81 and that contractors authorized to accompany
the force can be utilized in such operations in a non-combat role.82
62. The United States Government appears to draw a line between permitted and
prohibited activities of private military and security companies with reference to combat
and combat-related activities, but does not specifically address “high-risk activities”, which
would include quite a number of functions even outside combat. Additionally, there is no
clear enforcement mechanism for ensuring that agencies comply with the policy guidance
on “inherently governmental functions”, which is particularly worrying considering the
dramatic expansion of the government contractor industry and the massive increase in the
role and involvement of contractors in intelligence analysis and targeting decisions.
69 Federal Activities Inventory Reform Act of 1998, section 5.2 and Office of Management and Budget
Circular A-76, Inventory process, B (1) (a).
70 Federal Acquisition Regulation and Office of Federal Procurement Policy, policy letter 11-01.
71 Office of Federal Procurement Policy, policy letter 11-01, section 5-1 (a) (1) (i) and (ii).
72 Ibid., section 3, Definitions, (a) (3).
73 Ibid., appendix A.
74 Ibid., appendix A (4).
75 Ibid., appendix A (5) (a).
76 Ibid., appendix A (5) (b).
77
Ibid., appendix A (5) (c).
78
Federal Acquisition Regulation, section (d) (19) and Office of Federal Procurement Policy, policy
letter 11-01, appendix B (9).
79
Office of Federal Procurement Policy, policy letter 11-01, section 3 (b) (1).
80
Department of Defense Instruction No. 3020.41, enclosure 2, section (1) (a) (1).
81
Ibid., section (2) (e).
82
Ibid.
63. The assumption that private military and security company contractors do not carry
out inherently government functions relating to combat or direct participation in hostilities
is further supported by the legislation, which notes that contractor personnel accompanying
the United States armed forces or/and in a designated operational area or supporting a
diplomatic or consular mission outside the United States, are civilians.83 At the same time,
United States legislation also stipulates that contractors authorized to accompany the force,
if captured during international armed conflict, are entitled to prisoner of war status.84
64. In Australia, it is usually prohibited, among other things, to employ security persons
without a proper licence, to carry out a security activity without a proper licence, or if the
licence has been suspended or revoked, to contravene any condition of a licence, to
advertise security activities without being the holder of a licence, to abuse the authority
conferred by the licence and to refuse to produce the licence to a police officer or any
person with whom the licensee has dealings when carrying out security activity.85
65. In some cases, the research found references in the Australian legislation to the
involvement of law enforcement personnel in private military and security company-related
activities. For example, in the Australian Capital Territory, Commonwealth officers, such
as members of the defence force and protective service officers, are not bound by the
Security Industry Act.86 Also, in New South Wales, the provisions of the law do not apply
to members of the “armed forces” of the Commonwealth, another state or a territory.87
66. In Papua New Guinea, it is prohibited for a person to operate or receive security
services without a licence, employ a person without a permit or provide false or misleading
information in an application for a licence or permit.88 Further, if the holder is convicted of
an offence punishable by a term of imprisonment of two years or longer and, as a result of
the conviction, is sentenced to death or imprisonment, or if he/she is found guilty on a
complaint for which the penalty of cancellation of a licence is recommended by the Board
of Complaints, the licencing authority can cancel the licence.89 The relevant act includes no
provisions on the participation of law enforcement agents in the activities of private
security companies.
67. In Nauru, it is a criminal offence under the law to conduct a security activity without
a security licence, to operate a security firm and employ persons who do not hold a security
licence, to fail to comply with a condition of a security licence, to fail to produce a licence
when asked to do so by a police officer, and to fail to inform the licensing authority of any
change of detail in the licence or application.90 Further, a public officer cannot carry out the
duties of a security officer, bodyguard or crowd controller or perform security firm-related
activities.91
83
Code of Federal Regulations, title 48, chapter 2, section 252.225-7040 (2011 edition), Contractor
personnel authorized to accompany United States armed forces deployed outside the United States,
section (b) (3) and Federal Acquisition Regulation 52.225-19, Contractor personnel in a designated
operational area or supporting a diplomatic or consular mission outside the United States,
section (b) (iii).
84
Department of Defense Instruction No. 3020.41, enclosure 2, section (1) (a) (1.
85 Pursuant to section 10 of the Australian Capital Territory Security Industry Act 2003 and section 29B
of the New South Wales Security Industry Act 1997.
86 Security Industry Regulation 2003, Part 2 of section 6.
87
Security Industry Act, section 6 (2).
88
Security (Protection) Industry Act 2004, sections 50, 51 and 52.
89 Ibid., section 46.
90 Private Security Act 2012, sections 24-29.
91 Ibid., section 5.
68. In New Zealand, any person who conducts a private security business without a
licence is subject to a fine.92 The relevant act provides for specific responsibilities of
licensees and certificate holders, including the requirement to wear an identification badge,
the obligation to keep records, to allow access to those records by the police and the
Complaint, Investigation and Prosecution Unit and to inform the licensing authority of any
change to the licence/certificate holder’s name or residential address and of any ground for
disqualification subsequent to the application. Failure to comply with any of these
obligations would constitute a criminal offence.93
Rules on the acquisition of weapons
69. In the United States, the Arms Export Control Act governs the export and import of
specific defence-related articles and services, including private security company services,94
while the International Traffic in Arms Regulation requires that private military and
security companies that do business abroad and that wish to ship and use certain weapons,
protective equipment or electronics in connection with their business obtain export licences.
In Australia, a range of laws ensure the implementation of the respective arms-related
international treaties;95 these are further complemented by the Export Control Act 1982,
which imposes strict requirements on companies and individuals wishing to export
weapons. Finally, the Weapons of Mass Destruction (Prevention and Proliferation) Act
1995 requires a specific ministerial permit for the export of any goods or services to another
country.
Use of force and firearms
70. In the United States, with respect to situations in which force can be used,
“contractor personnel shall not be authorized to possess or carry firearms or ammunition
during applicable contingency operations,”96 except for cases “where the civil authority is
either insufficient or illegitimate, and the commander determines it is in the interests of the
Government to provide security, because the contractor cannot obtain effective private
security services; such services are unavailable at a reasonable cost; or threat conditions
necessitate security through military means”.97
71. United States law also specifies that contractor personnel accompanying the United
States armed forces or/and in a designated operational area or supporting a diplomatic or
consular mission outside the United States are authorized to use deadly force only in self-
defence98 and when such force reasonably appears necessary to execute their security
mission to protect assets/persons.99 In addition, Department of Defense personnel shall use
only the amount of force reasonably necessary to carry out their duties;100 force must be
reasonable in intensity, duration and magnitude;101 and deadly force is justified only under
92 Private Security Personnel and Private Investigators Act 2010, section 23. 93 Ibid., Part 3, sections 65-71.
94 Arms Export Control Act, section 2778.
95 Crimes (Biological Weapons) Act 197; Nuclear Non-Proliferation (Safeguards) Act 1987; Chemical
Weapons (Prohibition) Act 1994.
96 Department of Defense Instruction 3020.41, enclosure 2, section 3 (k).
97 Ibid., section 4 (e).
98 Code of Federal Regulations, title 48, chapter 2, section 252.225-7040 (2011 edition), section (b)
(3) (i); Federal Acquisition Regulation 52.225-19, section (b) (ii) (B) (3) (i).
99 Code of Federal Regulations, title 48, chapter 2, section 252.225-7040, section (b) (3) (ii); Federal
Acquisition Regulation 52.225-19, section (b) (ii) (B) (3) (ii).
100 Department of Defense Directive No. 5210.56 of 1 April 2011, enclosure 2, section 2 (a).
101 Ibid., section (2) (b).
conditions of necessity and may be used only when lesser means cannot be reasonably
employed or have failed and the risk of death or serious bodily harm to innocent persons is
not increased by its use.102
72. As for control over the use of force, United States regulations require an evaluation
of the necessity to arm personnel with consideration being given to the possible
consequences of accidental or indiscriminate use of those arms.103 Another regulation
provides that while Department of Defense civilian personnel engaged in security and law
and order activities shall be appropriately armed and have the inherent right to self-
defence,104 arming Department of Defense personnel with firearms shall be limited and
controlled and shall be limited to missions or threats and the immediate need to protect
Department of Defense assets or persons’ lives.105
73. With regard to further preconditions for the use force, contractor personnel can be
armed for individual self-defence only on the basis of applicable United States, host nation
or international law, relevant status-of-forces agreements, international agreements or other
arrangements with local authorities and on a case-by-case basis106 and if weapons
familiarization, qualification and briefings regarding the rules for the use of force have been
provided.107 According to United States rules, each geographic combatant commander shall
develop a system of verifying that private security company personnel meet all the legal,
training and qualification requirements for authorization to carry a weapon.108 The
permission process is run by the appropriate Staff Judge Advocate on a case-by-case
basis.109
74. Contractors designated to support a diplomatic or consular mission outside the
United States are also authorized to carry weapons and have to be adequately trained to
carry and use them,110 with full understanding of, and adherence to, the rules for the use of
force issued by the Combatant Commander or the Chief of Mission,111 in compliance with
applicable agency policies, agreements, rules and regulations and other applicable law.112 In
cases where all private security companies need to be armed, the relevant rules set out very
detailed procedures and documentation on individual training, covering weapons
familiarization and qualification; rules for the use of force; limits on the use of force,
including whether defence of others is consistent with host nation status-of-forces
agreements or local law; the distinction between the rules of engagement applicable to
military forces and the prescribed rules for the use of force that control the use of weapons
by civilians; and the Law of Armed Conflict.113
75. In addition, personnel authorized to be armed shall be thoroughly briefed on their
individual responsibilities and shall receive mandatory training.114 Moreover, security, law
enforcement or other designated personnel who routinely engage in duties or activities are
required to attend a complete Department of Defense component-approved training every
102 Ibid., section (4) (b).
103 Ibid.
104 Ibid., section 4 (a).
105 Ibid., section 4 (b).
106 Department of Defense Instruction 3020.41, 4 (e) (2) (a).
107 Ibid., 4 (e) (2) (b).
108 Department of Defense Instruction 3020.50, enclosure 3, Part 1 (a) (2).
109 Ibid., enclosure 3, Part 1 (a) (3).
110 Federal Acquisition Regulation 52.225-19 (h) (3) (i).
111 Ibid., (h) (3) (i) (B).
112 Ibid., (h) (3) (i) (C).
113 Department of Defense Instruction 3020.50, enclosure 3, section 1 (a) (2) and (3) (d).
114 Ibid., enclosure 2, section 1 (b) (2).
12 months, including firearms familiarization, live-fire qualification and use-of-force
training. The legislation also notes that the inappropriate use of force could subject
contractors to United States and local host nation prosecution and civil liability.115 For
example, unless immune from host nation jurisdiction by virtue of an international
agreement or international law, inappropriate use of force by contractor personnel
authorized to accompany the United States armed forces can subject such personnel to
United States or host nation prosecution and civil liability.116
76. In Australia, all state and territorial police departments maintain registries of firearm
ownership within their respective jurisdictions,117 and states and territories have introduced
restrictions on firearms and firearms storage requirements. For example, New South Wales,
South Australia, Tasmania and Western Australia allow the holder of a specific category of
licence to carry firearms, but only if the licensee is duly authorized under the applicable
firearms legislation.118
77. In Papua New Guinea, the licensing authority determines whether circumstances
justify carrying or using a firearm. The holder of a class A security operators licence or a
security officer may apply to the Registrar for the issue of a firearm licence. Except for this
specific provision, the relevant act119 expressly provides that a licence for a firearm shall
not be issued to any person licensed under the act.120
C. Accountability and remedies
78. In the United States, the Military Extraterritorial Jurisdiction Act extends federal
criminal jurisdiction to certain defence contractor personnel and to contractors hired by
other agencies that support the Department of Defense in connection with criminal offences
committed outside United States territory.121 If a contractor in a designated operational area,
or supporting a diplomatic or consular mission, is involved in conduct outside the United
States that would constitute an offence punishable by imprisonment for more than one year
if the conduct had been engaged in within the special maritime and territorial jurisdiction of
the United States, while employed by or accompanying the armed forces, he/she may be
subject to the criminal jurisdiction of the United States.122 The Secretary of Defense may
designate and authorize any person serving in a law enforcement position in the Department
of Defense to arrest any such person outside the United States.123 However, this provision
leaves a significant gap in extraterritorial criminal jurisdiction because it does not cover all
contractors working for other agencies, such as the Department of State.
115 Department of Defense Directive No. 5210.56, section 4 (e) (2) (c).
116 Code of Federal Regulations, title 48, chapter 2, section 252.225-7040 (2011 edition), section (b)
(3) (iii).
117 Tim McCormack, PRIV-WAR Report – Australia: Australian Report on National Legislation and
Judicial Practice, 2009, p. 7.
118 See, for New South Wales, Firearms Act No. 23 of 1996, sections 16C and 48; for South Australia,
Firearms Act 1977, sections 10-12; for Tasmania, Firearms Act No. 23 1996, sections 18 (c), 33, 37,
85 and 86; and for Western Australia, Firearms Act 1973, section 16A.
119 Security (Protection) Industry Act 2004.
120 Ibid., section 71. 121 Military Extraterritorial Act, United States Code, title 18, sections 3261-3267.
122 Military Extraterritorial Jurisdiction Act, United States Code, title 18, sections 3261 ff; Code of
Federal Regulations, title 48, chapter 2, section 252.225-7040 (2011 edition), section (e) (vii) (B)
(2) (i).
123 Military Extraterritorial Act, United States Code, title 18, section 3262.
79. Federal criminal jurisdiction also extends to conduct that is determined to constitute
a war crime when committed anywhere in the world, by or against a United States national
or a member of the United States armed forces.124 It also applies to the offences of
recruitment or use of child soldiers, genocide, homicide, torture or trafficking in persons
committed by a national of the United States within the special maritime and territorial
jurisdiction of the United States.125
80. The Uniform Code of Military Justice was also amended to expand the United States
military’s authority to prosecute crimes committed by civilians serving with or
accompanying the armed forces to include civilians serving in a “contingency operation”.126
It should be noted, however, that the constitutionality of this provision has not been fully
tested, as the United States Supreme Court has in the past expressed significant concerns
about trying civilians in military courts.127
81. In Australia, the legislation on criminal accountability pertains in certain limited
circumstances to private military companies by extending the application of Australian
criminal law to civilians (whether they are Australian nationals or residents or not)
accompanying the Australian forces abroad, or to Australian nationals or residents engaged
by an Australian governmental agency to undertake tasks in countries outside Australia. For
example, the Defence Force Discipline Act 1982, which provides in principle the legal
framework for the Australian military, establishes a process for the extension of the
Australian criminal law to civilians, including private contractors that accompany the
armed forces on missions abroad.
82. Under the Australian law, contractors of the Department of Defence can be
considered “defence civilians”; their criminal acts committed abroad are covered by the
extraterritorially applicable Australian criminal law and they can be prosecuted for such
acts by Australian courts.128 As a result of the amendment to the Crimes (Overseas) Act
1964, even criminal acts committed on mission by private security or military contractors
hired by government agencies other than the Department of Defence are covered by
Australian criminal law.129 The Crimes (Overseas) Act covers bodies corporate as well as
individuals, which means that an Australian private military or security company carrying
out activities in a foreign country could be subject to criminal prosecution.
83. The Working Group believes that private military and security companies contracted
by the Government of Australia should be held accountable for human rights violations,
even if they occur outside Australian territory. The Australian legislation on civil liability
for the activities of private military companies and private security companies and/or the
actions of their personnel is minimal. Australian contract law may well apply
extraterritorially in the sense that parties can enter into a binding contract in Australia for
services provided overseas, and any alleged breach of the contract can be litigated in
Australian courts. However, tortious liability in Australia does not extend extraterritorially
in the absence of a specific legislative provision to that effect.130
124 War Crimes Act, United States Code, title 18, section 2441.
125 United States Code, title 18, sections 1091, 1111, 2340-2340B and 2442; Code of Federal
Regulations, title 48, chapter 1 (2000 edition), sections 22-1700-22.1704.
126 Uniform Code of Military Justice, United States Code, title 10, sections 801-946.
127 See, e.g., Toth v. Quarles (1955).
128 Defence Force Discipline Act 1982, sections 9 and 61.
129 Crimes (Overseas) Act 1964, section 3.
130 McCormack, PRIV-WAR Report – Australia, p. 14.
84. In New Zealand, the licensing authority is also in charge of the discipline of the
licensees and certificate holders. A complaint can be filed with the authority against a
licensee or a certificate holder, on at least one ground for disqualification or cancellation.
This may apply if the licensee or certificate holder has contravened any provision of the
relevant act or regulations, or if he/she has been guilty of misconduct or gross negligence, if
a false statement was made in the application or if he/she has failed to meet one of the
responsibilities stipulated in the act.131
85. The authority will consider the complaint and, if it decides to investigate, may refer
the complaint to the police or to the Complaints, Investigation and Prosecution Unit.132 The
authority may take interim action and suspend a licence or certificate if this is in the interest
of the public and if further loss or damages may be caused if the licence/certificate is not
suspended.133 A disciplinary hearing will be held and, if the authority is satisfied that the
grounds of the complaint have been proved, it may cancel the licence or take other
measures that it deems appropriate, such as suspending the licence, requiring training,
stipulating additional conditions for the licence, levying a fine or issuing a reprimand.134
The licence or certificate may be cancelled by the authority on mandatory grounds, if at any
time a ground for disqualification applies or if the licence was issued by mistake or by
reason of fraud on the part of the applicant,135 or on discretionary grounds.136
86. In Papua New Guinea, the relevant law also provides for a Board of Complaints,
which shall inquire into any complaints against a licensee.137 The act also provides for
disciplinary actions against a licensee for improper conduct, which may be initiated by the
authority itself or any other person and will be decided upon by the Board.138 The Board
may impose penalties, such as a reprimand, the suspension or cancellation of the licence or
the permit, or attributing disciplinary points against the licensee.139
87. The legislation of Nauru contains no provisions with regard to accountability and
reporting; the only criminal offences are those that the law relates to the conduct of security
activity without a licence or those not in compliance with the licence.140
Ratification of the International Convention against the Recruitment, Use, Financing
and Training of Mercenaries
88. Australia, Nauru, Papua New Guinea and the United States have not ratified the
International Convention against the Recruitment, Use, Financing and Training of
Mercenaries. New Zealand and Australia are the only countries that have enacted national
laws relating to mercenary activities. With the exception of Papua New Guinea and the
United States, all other States have ratified Protocol I Additional to the Geneva
Conventions of 12 August 1949.
131 Private Security Personnel and Private Investigators Act 2010, sections 73 and 74.
132 Ibid., section 75.
133 Ibid., section 76.
134 Ibid., section 78.
135 Ibid., sections 79 and 82.
136 Ibid., sections 80 and 83.
137 Security (Protection) Industry Act 2004, sections 57 ff.
138 Ibid., sections 53 ff.
139 Ibid., section 61.
140 Private Security Act 2012, sections 24-29.
IV. Conclusions and recommendations
89. The research reveals that while each of the six countries that were part of the
former Soviet Union has legislation that directly or indirectly regulates private
security companies, each country approaches the regulation of those companies
differently. There is a general regulatory emphasis on formal and procedural
conditions, each country having a set of detailed criteria for the licensing, registration,
selection and training of private security companies and their personnel; however,
there is little provision for substantive requirements, with no reference to human
rights or any international standards. Along with the general lack of mechanisms for
the implementation and enforcement of the relevant regulations, the private security
industry is in practice subject to relatively loose control.
90. The study also demonstrates that despite detailed provisions on permitted and
prohibited activities, the acquisition of weapons and the use of force, the different
roles and functions of private security companies and those of law enforcement
authorities remain ambiguous. These regulatory gaps pose risks of violation of both
national laws and international humanitarian law. In view in particular of the
transnational tendencies of private security companies and the general lack of
extraterritorial application of legal instruments, there is little protection of
fundamental human rights such as the right to security, the right to life, the
prohibition of arbitrary deprivation of liberty, the prohibition of torture and cruel,
inhuman or degrading treatment and the right of victims to effective remedies.
91. Regarding the accountability of private military and security companies and
their personnel, the analysis reveals that the reviewed legislation lacks specific rules
on inspections and monitoring mechanisms, with no single publicly accountable body
dedicated to the regulation and control of private military and security company
activities. The different countries have slightly varying penal systems for human
rights violations by private military and security company personnel, but there is a
general lack of remedies for the victims of such violations. The standardization of
accountability and enforcement mechanisms can create a comprehensive network of
accountability throughout the region, ensuring compliance with international human
rights law and international humanitarian law.
92. Concerning the review of Australia, Nauru, New Zealand, Papua New Guinea
and the United States of America, the study reveals that each country approaches the
privatization of the security industry differently, creating regulatory gaps in some
respects. The analysed countries focus on the protection provided to persons and
goods in the domestic sphere and the majority of the countries do not specifically
address private military companies, the issue of military and security services
provided abroad or the extraterritorial applicability of the legislation. Only two out of
the five countries prohibit mercenarism in their national legislation.
93. In general, the five countries have detailed regulations on licensing and
authorization of private security services as well as on the selection criteria for the
personnel, but fewer rules could be found on the content of the training of private
military and security company staff. The analysis shows that only one of the five
countries analysed has legislation that includes some reference to international
humanitarian law in the selection criteria or in the training materials.
94. Further, none of the countries has specific rules on the direct participation of
private military and security companies in hostilities, while only one defines and lists
“inherently government functions” which are strictly reserved for government
personnel and cannot be exercised by private security or military contractors.
Additionally, few States make even limited references to the involvement of law
enforcement agents in the activities of private military and security companies and
very few references were found to specific rules on the export of weapons and
firearms by company personnel. The use of force is regulated in detail by only one of
the countries reviewed.
95. The Working Group notes that while some of the reviewed countries have
demonstrated commitment to the international legal instruments related to
mercenaries, the research reveals very limited reference to international standards in
their domestic laws. The Working Group calls on those countries that are parties to
the international instruments on mercenaries to incorporate the international
standards into national legislation and to introduce relevant enforcement and
accountability mechanisms. The Working Group also encourages signatory countries
to ratify, and the remaining States to become parties, to the relevant instruments.
96. The Working Group reiterates its view that a comprehensive, legally binding
international regulatory instrument is the best way to ensure consistent regulation
worldwide and adequate protection of the human rights of all affected by the activities
of private military and security companies. An international convention would
provide a standard regulatory framework for various essential issues related to the
activities of private military and security companies and a single dedicated body
would ensure the accountability of these companies’ personnel in guaranteeing the
right to effective remedies of all victims worldwide.
97. The Working Group also encourages Governments in the various regions it has
reviewed to promote discussion on the role of private security companies in the
context of regional security, as part of the agendas of intergovernmental, regional and
subregional organizations.