36/36 Report of the open-ended intergovernmental working group to consider the possibility of elaborating an international regulatory framework on the regulation, monitoring and oversight of the activities of private military and security companies on its sixth sessionwg / RightDocs

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Document Type: Final Report

Date: 2017 Aug

Session: 36th Regular Session (2017 Sep)

Agenda Item: Item3: Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development

GE.17-13386(E)



Human Rights Council Thirty-sixth session

11-29 September 2017

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 open-ended intergovernmental working group to consider the possibility of elaborating an international regulatory framework on the regulation, monitoring and oversight of the activities of private military and security companies on its sixth session

Note by the Secretariat

The Secretariat has the honour to transmit to the Human Rights Council the report of

the open-ended intergovernmental working group to consider the possibility of elaborating

an international regulatory framework on the regulation, monitoring and oversight of the

activities of private military and security companies on its sixth session, submitted pursuant

to Council resolutions 15/26 and 28/7. The Council, in its resolutions 15/26, 22/33 and

28/7, established and extended until September 2017 the mandate of the open-ended

intergovernmental working group. At the end of its sixth session, held from 22 to 24 May

2017, the open-ended intergovernmental working group adopted its conclusions and

recommendations, which are contained in section V of the report, for the consideration of

the Council at its thirty-sixth session.

United Nations A/HRC/36/36

I. Introduction

1. The Human Rights Council decided, in its resolution 15/26, to establish an open-

ended intergovernmental working group with the mandate to consider the possibility of

elaborating an international regulatory framework, including, inter alia, the option of

elaborating a legally binding instrument on the regulation, monitoring and oversight of the

activities of private military and security companies, including their accountability, taking

into consideration the principles, main elements and draft text as proposed by 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. After an initial extension pursuant to

resolution 22/3, the Council decided, in its resolution 28/7 of 26 March 2015, to extend the

mandate of the open-ended intergovernmental working group for a further period of two

and a half years in order for it to undertake and fulfil its mandate.

2. The sixth session, held from 22 to 24 May 2017, was opened by the Chief of the

Human Rights Treaties Branch of the Office of the United Nations High Commissioner for

Human Rights (OHCHR). He noted that the discussions and work during the past six years

had contributed to a greater understanding of the range of complex issues associated with

the activities of private military and security companies. The vast amount of information

contained in the reports from the previous sessions, and the discussions during the sixth

session, would help to develop and shape the conclusions and recommendations to be

submitted to the Council at its thirty-sixth session.

3. He referred to the efforts made by the Chair-Rapporteur in order to build consensus

among the delegations around certain outstanding issues that had arisen from the previous

sessions, including meetings of the regional coordinators and the informal working

consultation held on 15 May 2017, which was open to all Member States. Following the

consultation, a draft discussion document on elements for an international regulatory

framework on the regulation, monitoring and oversight of the activities of private military

and security companies (see section III, below) had been shared with all Member States in

order to facilitate the discussions during the sixth session. Furthermore, a compilation of

recommendations from the previous five sessions of the open-ended intergovernmental

working group had been prepared by the Secretariat and was shared with the delegations.1

4. From a human rights perspective, he stressed the importance of ensuring that there

was no gap in protection from human rights abuses; whenever such abuses were committed

by private military and security companies, victims should have access to an effective

remedy. Accountability and justice related to the abuses committed by private military and

security companies required robust monitoring and reporting, immediate cessation of

abuses and establishment of accountability mechanisms. In cases in which human rights

abuses occurred, States had the obligation not to let them go unpunished. The lack of

accountability for abuses of human rights owing to recourse to private military and security

companies, including in complex situations, posed serious concerns. In that context, he

recalled the activities carried out by OHCHR, various special procedure mandate holders

and the Council referred to in the report of the fifth session (A/HRC/WG.10/5/2). He also

highlighted the panel discussion organized in April 2017 by the Working Group on

mercenaries, which had focused on the impact of private security companies on the

situation of human rights in places of deprivation of liberty. As current trends in various

countries indicated that States could increase the practice of offering contracts to private

1 See www.ohchr.org/EN/HRBodies/HRC/WGMilitary/Pages/OEIWGMilitarySession6.aspx.

security companies to operate prisons and detention facilities, he stressed that that could

pose serious risks for human rights. He hoped that the discussions during the sixth session

would continue to enhance the human rights perspective on the regulation, monitoring and

oversight of the activities of private military and security companies.

II. Organization of the sixth session

A. Election of the Chair-Rapporteur

5. At its first meeting, on 22 May 2017, the open-ended intergovernmental working

group elected, by acclamation, the Permanent Representative of South Africa to the United

Nations Office and other international organizations at Geneva, Nozipho Joyce Mxakato-

Diseko, as its Chair-Rapporteur. The open-ended intergovernmental working group then

adopted its agenda (A/HRC/WG.10/6/1) and programme of work.

B. Attendance

6. Representatives of the following States were present at the sixth session: Algeria,

Argentina, Australia, Austria, Belgium, Brazil, Canada, China, Colombia, Croatia, Cuba,

Ecuador, Egypt, Estonia, Finland, France, Germany, Guatemala, India, Iran (Islamic

Republic of), Iraq, Jamaica, Japan, Jordan, Kazakhstan, Kuwait, Malaysia, Morocco,

Panama, Peru, Qatar, the Russian Federation, Saudi Arabia, South Africa, Spain,

Switzerland, the Syrian Arab Republic, Tunisia, Ukraine, the United Kingdom of Great

Britain and Northern Ireland, the United States of America, and Venezuela (Bolivarian

Republic of). Representatives of the State of Palestine, the European Union and the

International Committee of the Red Cross were also present. Furthermore, representatives

of Aspida Risk Management, the Association of World Citizens, Cercle de recherche sur les

droits et les devoirs de la personne humaine, the Geneva Centre for the Democratic Control

of Armed Forces, Geneva for Human Rights, the International Commission of Jurists and

United Villages were present.

C. Introductory remarks of the Chair-Rapporteur

7. In her introductory remarks, the Chair-Rapporteur stressed that the sixth session

would be primarily focused on responding to the mandate given to the open-ended

intergovernmental working group by the Council. She trusted that, at the end of its sixth

session, the open-ended intergovernmental working group would formulate a set of

conclusions and recommendations that would address the possibility of elaborating an

international regulatory framework on the regulation, monitoring and oversight of the

activities of private military and security companies. She requested that all delegations

focus their interventions with that aim in mind.

8. In that context, she extended her sincere thanks to the regional coordinators who had

engaged with her extensively during the preparatory stage of the sixth session and had

provided substantive inputs and contributions in order to develop the draft programme of

work. Furthermore, the informal consultation with Member States, held on 15 May 2017,

had been another opportunity to engage with delegations directly, which contributed to

reducing the differences among delegations in relation to a number of outstanding issues

related to private military and security companies. She also referred to the documents that

had been circulated by the Secretariat, i.e. a compilation of recommendations from the five

previous sessions and a discussion document (see section III, below).

9. The Chair-Rapporteur noted that the issues at hand were complex and multifaceted.

Human rights abuses perpetrated by private military and security companies needed to be

addressed and there was a need to ensure effective remedies for all victims. The previous

sessions had been focused on a range of issues around those topics, and the processes,

instruments and regulatory frameworks available at the national and international levels to

address the abuses and provide remedies to victims. The discussions in the previous

sessions had also provided an overview of the gaps and areas in which more efforts were

required by the international community. In view of that background, the draft programme

of work developed for the sixth session consisted of reflections on previous sessions,

including areas of convergence and mapping of processes and initiatives, and on challenges

and areas in which additional efforts were needed. Furthermore, the sixth session was

devoted to drafting conclusions and recommendations by the intergovernmental working

group for submission to the Council. She thanked all delegations for their continued active

engagement in that process and looked forward to a fruitful sixth session.

III. Discussion document

10. Prior to the start of the sixth session, the Chair-Rapporteur had submitted a

discussion document on an international regulatory framework on the regulation,

monitoring and oversight of the activities of private military and security companies, which

contained the following elements:

1. Definitions and interpretations

(a) Private military and security companies;

(b) Private security companies;

(d) Complex environments.

2. Objectives of the regulatory framework

(a) To ensure respect for human rights by the private military and security

industry operating in complex situations;

(b) To ensure the transparent use of the private military and security industry;

companies do not have a negative impact on the rights of individuals.

3. Principles

(a) Effectiveness, namely that the regulatory framework must have a genuine,

significant and positive impact on performance, rather than just offering process without

substantive change and, to that end, it must be based on third party rather than self-

regulation;

(b) Inclusiveness, namely that the regulatory framework must have an impact on

the performance of all companies and not just those companies that are already achieving

appropriate standards, although perhaps not in a fully measurable and independently

verifiable manner;

concerns about the integrity of voluntary or self-regulatory systems;

(d) Affordability, namely that regulation must be proportionate to operational

needs and companies should only have to demonstrate conformity with one accepted and

recognized standard.

4. Contracting States

(a) To determine which military/security services States cannot contract out;

(b) To establish a procurement process for private military companies and

private security companies that incorporates an assessment of a company’s capacity to

perform services in accordance with the law, including robust selection criteria;

national laws, human rights law and applicable international humanitarian law, including

providing relevant guidance;

(d) To monitor and ensure accountability, including by addressing issues of

jurisdiction and immunities, for companies operating under a government contract.

5. Territorial States

(a) To ensure that the private security industry within their jurisdiction is

effectively controlled and regulated;

(b) To determine which services cannot be carried out by private military

companies and private security companies in their territory;

security services, with robust criteria for licensing;

(d) To monitor private military companies and private security companies that

operate on a State’s territory.

6. Home States

(a) To determine which military/security services cannot be exported;

(b) To establish a process to authorize the export of military and security

services, with robust criteria for licensing;

personnel;

(d) To monitor and ensure accountability.

7. States of nationality

(a) To determine which military/security services cannot be performed abroad by

nationals of the State;

(b) To establish a process to authorize nationals to perform military and security

services abroad, including criteria for licensing;

(d) To monitor and ensure accountability;

(e) To ensure access to remedies for victims of violations;

(f) To prevent citizens and permanent residents from working for private

military and security companies that have not undergone a transparent and fair

authorization process administered by a designated regulatory authority.

8. Private military and security companies

(a) To establish and implement compliance mechanisms to ensure that the

selection, vetting and training of personnel performing military or security services are in

conformity with national and international law;

(b) To establish grievance mechanisms;

security companies who engage in misconduct.

IV. Reflection on previous sessions of the open-ended intergovernmental working group and discussion on the way forward

11. In their general statements at the beginning of the sixth session, delegations

expressed their wish to move forward in a spirit of consensus and cooperation. They

remarked that the informal consultation held on 15 May 2017, in anticipation of the sixth

session, had been useful and had enabled delegations to reduce differences on a number of

outstanding issues. Delegations also expressed gratitude for the discussion document that

had been circulated after the informal consultation, and for the compilation of

recommendations made by the open-ended intergovernmental working group during its

previous five sessions.

12. Delegations agreed on the importance of prevention and protection against human

rights abuses and highlighted the importance of oversight and accountability in that area.

The private military and security companies industry was evolving quickly and a range of

obligations existed for States. The private sector wanted legal certainty and victims and

human rights defenders needed reliable access to remedies through judicial or non-judicial

mechanisms. They emphasized the importance of multi-stakeholder participation in

determining the way forward, but agreed that States were the primary decision makers in

the context of the open-ended intergovernmental working group. There had been agreement

during the previous five sessions regarding the need to improve regulation of private

military and security companies and address abuses perpetrated by such companies. Since

2011, States had made progress in analysing and addressing issues related to the operation

and regulation of private military and security companies. Progress had also been made in

relation to the steps that contracting States, home States, territorial States, and States of

nationality should take. States could be mutually supportive by drawing on each other’s

experiences, guidelines, action plans, good practices, mutual legal assistance programmes

and template agreements. They hoped that the sixth session would provide a forum to focus

on what the problems were and what strategies were working to address them.

13. Some delegations said that it was key for any new regulatory framework to be based

on and complement existing processes, mechanisms, legislation and initiatives, such as the

International Code of Conduct for Private Security Service Providers and the International

Code of Conduct Association; the Montreux Document on pertinent international legal

obligations and good practices for States related to operations of private military and

security companies during armed conflict and the Montreux Document Forum; the

Legislative Guidance Tool for States to Regulate Private Military and Security Companies

and the Contract Guidance Tool for Private Security prepared by the Geneva Centre for the

Democratic Control of Armed Forces; and international standard ISO-18788:2015, which

provides a framework for establishing, implementing, operating, monitoring, reviewing,

maintaining and improving the management of security operations.2 They also referred to

the Guiding Principles on Business and Human Rights (A/HRC/17/31, annex) and the

Accountability and Remedy Project of OHCHR, including the report of the United Nations

High Commissioner for Human Rights on improving accountability and access to remedy

for victims of business-related human rights abuse (A/HRC/32/19 and Corr.1 and

A/HRC/32/19/Add.1).

14. Some delegations were unconvinced of the need for a legally binding instrument and

considered that there was no consensus on moving forward on the creation of such an

instrument. However, they considered that the development of an international regulatory

framework was in the interest of all stakeholders; further work would be needed to

determine the form such a framework could take. There was widespread agreement on the

need to improve the conduct of private military and security companies and address abuses

whenever they occurred. They referred to the consensus on the distinctions between private

military companies and private security companies and noted that each of those types of

companies raised their own challenges. They urged the open-ended intergovernmental

2 www.iso.org/standard/63380.html.

working group to be mindful of the distinctions between the two types of companies. They

also observed that the open-ended intergovernmental working group could examine

national legislation so as to determine best practices and lessons learned.

15. Other delegations called for an international legally binding instrument that

regulated the activities of private military and security companies, pursuant to international

standards. They stated their concern regarding the current impunity of private military and

security companies and referred to certain activities of such companies, for example

detaining individuals and engaging in arms trafficking and mercenary behaviour, as the by-

products of outsourcing warfare to private entities. They said that private military and

security companies were largely able to operate outside the constraints of legal supervision.

They recognized the regulatory framework needed strengthening and highlighted legal

issues surrounding jurisdiction. They observed that existing tools contained worthwhile

pillars for action but were not a complete solution. They stated that in the absence of

national legislation, or in the context of insufficient or ineffective legislation, the open-

ended intergovernmental working group should draft a document to be submitted to the

Council.

16. In the open-ended intergovernmental working group, there was an emerging

consensus to work on the basis of the Chair-Rapporteur’s discussion document (see section

III, above) and an acknowledgement that moving forward on the topic would be an

important breakthrough in the work of the open-ended intergovernmental working group.

The consensus had led delegations to work together to outline the possible next steps that

the open-ended intergovernmental working group could take, which would be presented to

the Council at its thirty-sixth session.

17. On 23 May 2017, delegations referred to a document that had been prepared during

the first day of the sixth session in relation to which delegations had sought instructions

from their Governments. Delegations wanted to agree on a mutually acceptable formulation

of words so that the open-ended intergovernmental working group could offer conclusions

and recommendations for the Council’s consideration. Delegates noted that the work of the

open-ended intergovernmental working group was urgent as the end of its mandate was

approaching and the Council needed time to consider and discuss the way forward. As

agreed by the regional coordinators at their meeting held on 6 April 2017, the sixth session

had been scheduled to conclude on 24 May 2017, which meant that the business of the

open-ended intergovernmental working group needed to be concluded within three days,

rather than five days, as had been the case for previous sessions.

18. Delegations reflected on the need to avoid conflict or a situation of stalemate at that

stage, particularly in relation to the different views on the possible legal status of any

document that could eventually be proposed by the open-ended intergovernmental working

group. The Chair-Rapporteur urged delegations not to pre-empt the outcome of any future

deliberations of the open-ended intergovernmental working group and avoid divisions

among delegations on the question of whether an international regulatory framework would

be legally binding or not. Delegations noted that the open-ended intergovernmental

working group had decided, at that point, to freeze discussion of whether to recommend the

creation of a legally binding instrument. “Constructive ambiguity” in the recommendations

and conclusions was helpful in a context in which delegations held a range of differing

views.

19. Delegations initially encountered difficulties in agreeing on a way forward and

found the question of including references to existing relevant standards and tools, such as

the Montreux Document and the International Code of Conduct, to be challenging. Some

delegations held the view that inclusion of those references was essential as those were the

only two documents that dealt specifically with private military and security companies.

Other delegations said that such inclusion was not necessary as a catch-all paragraph could

be drafted to reflect all the standards and tools prepared by the industry and other

stakeholders without naming particular standards and tools. They felt uncomfortable

referring to specific standards and tools that had not been universally drafted and accepted

and were not part of the United Nations process.

20. Noting the divergent views, the Chair-Rapporteur asked for the different

formulations to be presented in one document, which was subsequently circulated to the

delegations. The Chair-Rapporteur stressed that if consensus could not be reached by the

end of the second day of the session then she would put the different formulations to a vote

as she felt that that was the most democratic way to proceed. Delegations said they

preferred to work towards a consensus text that could be presented to the Council as the

recommendations and conclusions of the open-ended intergovernmental working group.

21. After a period of reflection and negotiation on 23 May 2017, delegations were able

to propose a consensus text that took into account the different positions that had been

articulated. The revised formulation (see section V, below) streamlined the text that had

been discussed earlier and resolved the question of how to refer to the relevant stakeholders

with relevant expertise who could assist the open-ended intergovernmental working group

in its subsequent work.

22. Prior to the adoption of the conclusions and recommendations on 24 May 2017, the

representative of Egypt had affirmed the country’s commitment to the mandate given to the

open-ended intergovernmental working group regarding its commitment to the human

rights standards agreed upon in international human rights law. The representative also

affirmed the commitment of Egypt to the United Nations and international documents to

which it was party and welcomed efforts exerted by delegations to reach consensus on the

draft conclusions and recommendations. With a view to supporting those efforts, Egypt

decided to go along with the consensus on the proposed text, while reaffirming its

understanding that paragraph 28 (b) below was restricted to inviting the Co-Chairs of the

Montreux Document Forum to contribute to the discussion on the regulatory framework

within the open-ended intergovernmental working group to be established by virtue of the

recommendations detailed in section V below and stressing that Egypt was not committed

to any document or process to which it was not a party and had not contributed to its

preparation. The representative requested that the position of Egypt be reflected in the

present report.

23. The representative of India joined the consensus and also supported the process.

However, the representative expressed concern over the inclusion of the term “industry” in

paragraph 28 (b) of the recommendations, below. The representative suggested that

paragraph 28 (b) should finish after the term “relevant expertise”, since the rest of the

sentence was not necessary. References to the Montreux Document Forum and the

International Code of Conduct Association were not acceptable to India because both those

references were included within the meaning of the phrase “other stakeholders”. The

representative requested that the position of India be reflected in the present report and

noted that Algeria joined the statement.

24. The representative of Brazil fully joined the consensus around the conclusions and

recommendations of the open-ended intergovernmental working group. Private military and

security companies did not operate in a legal vacuum and the Montreux Document provided

a compilation of relevant international human rights law and international humanitarian law

applicable to their work. Nevertheless, it was clear that the absence of a legally binding

international instrument imposed greater challenges on monitoring and supervising the

activities of private military and security companies, and exposed those living in territorial

States to the increased likelihood of human rights abuses. Therefore, Brazil considered that

negotiating an international legally binding instrument was not only desirable, but also

necessary. Following the constructive suggestion of the Chair-Rapporteur, the open-ended

intergovernmental working group had decided to freeze that discussion in order to move

forward. Brazil supported that conciliatory and constructive approach and expected that the

goodwill to engage in meaningful discussions and negotiations on substantive issues aimed

at confidence-building and reaching consensus would last until the open-ended

intergovernmental working group concluded its important task. The representative of Brazil

expressed confidence that the open-ended intergovernmental working group could move

forward and provide all societies with an outcome document that adequately addressed the

relevant challenges faced in relation to the regulation of activities performed by private

military and security companies.

25. The representative of the International Committee of the Red Cross made a technical

remark but did not want to risk jeopardizing the consensus achieved by the delegations. As

regards paragraph 27 (b) below, he noted that private military and security companies

operated in different circumstances, including in armed conflict. He suggested that

reference to international human rights law and international humanitarian law, as

applicable, could be included after the term “abuses” in paragraph 27 (b). The Chair-

Rapporteur asked if that technical remark could be reflected in the report, rather than

reopening negotiation of the conclusions and recommendations, to which the representative

of the International Committee of the Red Cross acceded.

V. Conclusions and recommendations

26. On 24 May 2017, the open-ended intergovernmental working group to consider

the possibility of elaborating an international regulatory framework on the regulation,

monitoring and oversight of the activities of private military and security companies

adopted the following conclusions and recommendations:

27. The open-ended intergovernmental working group:

(a) Notes the recommendations of the first five sessions of the open-ended

intergovernmental working group;

(b) Recognizes the need to protect human rights and ensure accountability

for violations and abuses relating to the activities of private military and private

security companies;

international regulatory framework that would address these concerns;

(d) Notes relevant national, regional and international standards and tools,

including those prepared by various stakeholders.

28. The open-ended intergovernmental working group recommends that the

Human Rights Council consider the establishment of a new intergovernmental

working group for a period of three years mandated to:

(a) Commence elaborating the content of an international regulatory

framework, without prejudging the nature thereof, in efforts to protect human rights

and ensure accountability for violations and abuses relating to the activities of private

military and private security companies, informed by the discussion document on

elements for an international regulatory framework on the regulation, monitoring and

oversight of the activities of private military and security companies, as prepared by

the Chair-Rapporteur, and further inputs from Member States and other

stakeholders;

(b) Invite the contributions of Governments, relevant special procedure

mandate holders and mechanisms of the Council, treaty bodies, regional groups,

intergovernmental organizations, civil society, the industry and other stakeholders

with relevant expertise, including the Co-Chairs of the Montreux Document Forum

and the International Code of Conduct Association.

29. The open-ended intergovernmental working group also recommends that its

conclusions and recommendations be incorporated in a resolution of the Human

Rights Council.