36/47 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

GE.17-12309(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 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 provides an

overview of the findings of a global study conducted from 2013 to 2016 on the national

legislation on private military and security companies in 60 States from all the regions of

the world. The findings focus on existing regulatory gaps, commonalities and good

practices and can provide guidance to Member States and various stakeholders on

regulation. Existing regulatory gaps are real indicators that more robust measures are

required for stronger protection against human rights violations by private military and

security companies. The Working Group reiterates the need for a comprehensive, legally

binding instrument to ensure adequate human rights protection within, and of, the industry.

United Nations A/HRC/36/47

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. Good practices ............................................................................................................................... 4

III. Gaps in national legislation ........................................................................................................... 7

A. Scope of application ............................................................................................................. 7

B. Licensing, authorization and registration of private security companies .............................. 8

C. Selection and training of personnel of private military and security companies .................. 9

D. Prohibited and permitted activities of private military and security companies ................... 10

E. Rules on acquisition of weapons........................................................................................... 12

F. Use of force and firearms...................................................................................................... 13

G. Accountability....................................................................................................................... 14

IV. Analysis ......................................................................................................................................... 15

V. Conclusions and recommendations ............................................................................................... 17

I. Introduction

1. The present report provides an overview of the findings of the Working Group’s

global study on national legislation covering private military and security companies in 60

States from five regions worldwide.1

2. Between 2013 and 2016, annual reports to the Human Rights Council covered the

national legislation of thirteen anglophone African States, 2 eight francophone African

States3 and eight Asian States. The 2015 report4 covered the laws and regulations of eight

countries in Central America and the Caribbean,5 eight countries in South America6 and

four countries in Europe.7 The 2016 report8 covered six countries of the Commonwealth of

Independent States,9 four countries in the Asia and Pacific region,10 and the United States of

America.11 Additional background and research documents relating to the regional studies

undertaken in the past four years are available on the Working Group’s website12 and can

provide more comprehensive and in-depth coverage of the national legislation referred to in

the present report.

3. The global study was conducted to provide analysis of national legislation in order

to assess existing gaps, trends and good practices, which could help in developing guidance

on regulation within and of the industry. The methodology for the study included a

questionnaire sent to States13 in 2012. Over 30 States responded. Additional research was

conducted on States’ laws and regulations relating to private military and security

companies in all of the United Nations regional groups. The Working Group then analysed

the available laws and regulations, on the basis of the following criteria: (a) references to

conventions on mercenaries; (b) scope of application; (c) rules on licensing, authorization

and registration; (d) regulations on selection and training; (e) prohibited and permitted

activities of private military and security companies; (f) rules on acquisition of weapons by

private military and security companies; (g) use of force and firearms; and (h)

accountability.

4. The Working Group would like to thank the Member States and all stakeholders that

contributed to the global study in the past four years.

1 The report is non-exhaustive, and a more comprehensive coverage of the main issues can be found in

the Working Group’s annual reports to the Human Rights Council from 2013 to 2016.

2 See A/HRC/24/45, in regard to Botswana, the Gambia, Ghana, Kenya, Lesotho, Mauritius, Namibia,

Nigeria, Sierra Leone, South Africa, Swaziland, Uganda and Zimbabwe.

3 See A/HRC/27/50, in regard to Burkina Faso, Cameroon, Côte d’Ivoire, the Democratic Republic of

the Congo, Mali, Morocco, Senegal and Tunisia, and to China, India, Malaysia, Pakistan, the

Philippines, Singapore, Sri Lanka and the United Arab Emirates.

4 A/HRC/30/34.

5 Costa Rica, Cuba, El Salvador, Guatemala, Honduras, Mexico, Nicaragua and Panama.

6 Argentina, the Plurinational State of Bolivia, Brazil, Chile, Colombia, Ecuador, Peru and Uruguay.

(For Argentina, which has a federal system under which regulations are implemented by each

province, the regulations of the Province of Buenos Aires were analysed.)

7 France, Hungary, Switzerland and the United Kingdom of Great Britain and Northern Ireland.

8 A/HRC/33/43.

9 Azerbaijan, Kazakhstan, Kyrgyzstan, the Republic of Moldova, Tajikistan and Uzbekistan.

10 Australia, New Zealand, Nauru and Papua New Guinea.

11 Australia and New Zealand, along with the United States of America, are members of the Western

European and Others Group at the United Nations, one of the geopolitical regional groups into which

Member States have unofficially divided themselves.

12 See www.ohchr.org/EN/Issues/Mercenaries/WGMercenaries/Pages/NationalLegislationStudies.aspx.

13 With regard to the methodology for the Latin American States, the selection was focused on Spanish-

speaking countries.

II. Good practices

5. This section provides a summary of some of the good practices identified in various

States.

6. Three of the six countries reviewed from the Commonwealth of Independent States

have ratified the International Convention against the Recruitment, Use, Financing and

Training of Mercenaries14 and all six have enacted criminal offences relating to mercenary

activities.15 The laws of both Peru and South Africa also specifically prohibit mercenary

activities.16

7. Regarding the scope of legislation, States vary on the definitions given to military

and security services. Most States informed the Working Group that their laws only

covered private security companies and not private military companies. South Africa has

good model legislation that broadly defines a security service,17 prohibits the export of

military and security services,18 and applies extraterritorially.19 Any act that constitutes an

offence under the applicable law and is committed outside South Africa is considered to

have been committed in the country.20

8. The Swiss legislation is also progressive in relation to extraterritorial application, as

it covers the activities of local private security companies, 21 and services provided by

companies hired locally or abroad by the Government and by private security companies

abroad.22

9. The legislation of the United States of America and of Australia is quite elaborate on

extraterritoriality as well. The Military Extraterritorial Jurisdiction Act, of the United

States, extends United States federal criminal jurisdiction to certain defence contractor

personnel or contractors hired by other agencies who support the Department of Defense as

regards criminal offences committed outside United States territory.23 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, he or she may be potentially subject to the criminal

jurisdiction of the United States of America. 24 In Australia, the contractors of the

Department of Defence can be considered as “defence civilians”, and criminal acts abroad

are covered by the applicable criminal law and prosecution can take place in Australian

courts.25 As a result of the amendment of the Crimes (Overseas) Act 1964, criminal acts by

private security or military contractors hired by government agencies other than the

Department of Defence are covered by Australian criminal law.26 The Crimes (Overseas)

Act covers bodies corporate as much as individuals, which means that an Australian private

14 Of 4 December 1989. A total of six countries from the Commonwealth of Independent States were

reviewed.

15 Art. 114 of the Criminal Code of Azerbaijan, arts. 170 and 267 of the Criminal Code of Kazakhstan,

arts. 229 and 375 of the Criminal Code of Kyrgyzstan, arts. 141, 151 and 152 of the Criminal Code of

the Republic of Moldova, arts. 185, 195, 196, 401, 403 and 405 of the Criminal Code of Tajikistan,

and arts. 97, 104, 105 (chap. 1 of sect. 1) and 154 of the Criminal Code of Uzbekistan.

16 With regard to South Africa, see Act No. 27 of 2006 (Prohibition of Mercenary Activities and

Regulation of Certain Activities in Country of Armed Conflict Act).

17 Sect. 1 (1) of the Private Security Industry Regulation Act, 2001.

18 See the Private Security Industry Regulation Act No. 56 of 2001, the Regulation of Foreign Military

Assistance Act (No. 15 of 1998) and the Prohibition of Mercenary Activities and Regulation of

Certain Activities in Country of Armed Conflict Act (No. 27 of 2006).

19 See the Private Security Industry Regulation Act, art. 39 (1).

20 Ibid.

21 Concordat on the Services of Private Security Companies of 2010.

22 Decree on the Hiring of Private Security Companies of 2007.

23 Military Extraterritorial Jurisdiction Act (18 U.S. Code, sects. 3261-3267).

24 Military Extraterritorial Jurisdiction Act (18 U.S. Code, sects. 3261 et seq.), and 48 Code of Federal

Regulations, chap. 1 (10-1-11 edition), 52.225-19, p. 210.

25 Defence Force Discipline Act 1982, sects. 9 and 61.

26 See sect. 3.

military company or private security company carrying out activities in a foreign country

could be subjected to criminal prosecution as well.

10. Various States in Latin America27 have specific registration systems at the national

level for private security companies. Cameroon, Pakistan, the Philippines and Sri Lanka

also have similar regulatory provisions. The Province of Buenos Aires also requires the

supervisory authority to keep a registry of the persons authorized to provide private security

services, and also of persons who have been rejected for infractions.28

11. With regard to the licensing and selection process, four States in Asia (China, the

Philippines, Singapore and the United Arab Emirates) require licensing for a company

providing private security services, and for individual security personnel or employees.29

The requirement for personnel of private security companies to obtain licences can be an

important vetting mechanism to ensure that qualified persons are employed, but also that

persons with past convictions relating to human rights abuses are excluded. As for the

relationship between the licensing and selection process and human rights standards, the

Working Group notes that according to the Swiss legislation, “competent authorities” can

decide to prohibit, wholly or partially, certain activities because they may be contrary to the

aims of the law, including services that may be used to commit human rights violations.

Another good example is the legislation of the Province of Buenos Aires, where private

security companies are prohibited from having partners that have benefited from amnesties

and been indicted for human rights violations, and a certificate issued by the competent

human rights authorities is required as proof.30 In Guatemala, candidates who have served

in the army, the national civilian police, the government intelligence services or another

private security company must prove that if they were dismissed it was not because they

committed a crime or a human rights violation.

12. Good examples of references to international human rights and humanitarian law

standards in the training of personnel of private security companies are found in the Swiss

legislation, which requires companies to train their personnel in applicable national and

international law, including on fundamental rights. Reference to “human rights” appears

several times in Brazilian legislation, in which it is stated that training must cover

preservation of the physical integrity of persons confronted with the use of force in their

work, in accordance with the principles of human rights advocated by the United Nations.31

El Salvador, Guatemala,32 Mexico33 and Colombia34 require a private security company to

offer training on human rights to its personnel. Colombia refers to a special training

programme involving international humanitarian law.35

13. In 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

27 Brazil, Cameroon, Chile, Colombia, Ecuador and Peru. Also Pakistan, the Philippines and Sri Lanka,

and the Province of Buenos Aires.

28 Act. No. 12.297.

29 Regarding China, see Order of the State Council No. 564, Regulation on the Administration of

Security and Guarding Services, of 2009. Regarding the Philippines, see the Private Security Agency

Law, 1969 (Act No. 5487), as amended by Presidential Decree No. 11, 1972, and, subsequently, by

Presidential Decrees No. 100, of 1973, and No. 1919, of 1984. Regarding Singapore, see the Private

Security Industry Act, 2007 (Act No. 38). Regarding the United Arab Emirates, see Federal Decree

No. 37, of 2006, concerning Private Security Companies (art. 11, which provides that the company

may not contract a security employee until it has obtained the approval of the competent authorities

and fulfilled the restrictions and conditions specified in the law’s executive regulations).

30 Act No. 12.297, art. 8 (2); and Acts No. 23.492 and No. 23.521.

31 Ordinance No. 3233, annexes; Act. No. 7102/1983, art. 16; and Ordinance No. 3233/2012, art. 155

(VI).

32 Act No. 51/2010, art. 51 (c).

33 Art. 25 (VIII), federal law of 2006.

34 Act No. 365/1994, art. 74.

35 Act. No. 2974/1997, art. 21.

personnel performing private security functions in an area of combat operations. 36 The

Department of Defense also supported the development of a business and management

standard, 37 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.38 Australia and New Zealand

have also recognized and supported ISO 18788.

14. With regard to prohibited activities, it is stated in the laws of Guatemala that the

private security industry cannot assume functions that are the tasks of the Government.39

The United States limits the outsourcing of “inherently governmental functions” to private

military and security companies. Federal law40 and federal policy41 define the scope of those

functions which only governmental personnel, and not contractor employees, may perform.

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 detention”,42 and “gathering information for or providing advice, opinions,

recommendations or ideas to Federal Government officials”43 are not to be considered as

inherently governmental functions.

15. Swiss law clearly prohibits direct participation in hostilities in an armed conflict

abroad — including through the hiring, training and provision of security personnel for

direct participation in hostilities abroad or the establishment, management or control of a

company in Switzerland involved in such activities44 — and provides specific sanctions,

including fines and imprisonment, for violations of that provision. The laws of Costa Rica

and Mexico include human rights violations among the prohibited activities.45 It is stated in

Costa Rican regulations that under no circumstances may simple obedience be invoked as

justification for or to claim impunity for torture or cruel, degrading or inhuman

punishment.46

16. Regarding the involvement of law enforcement officers in the activities of private

military and security companies, some States in South America prohibit active members of

the police and armed forces (public officials too, in the Plurinational State of Bolivia), as

well as (with the exception of Chile) former members of the police and the armed forces

who have committed infractions or crimes, from undertaking private security activities.

Australia and Nauru have similar laws, and the majority of francophone African States’

laws discourage private security companies from hiring former members of the military

forces or the police as managers or employees. Some European countries, such as France47

36 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. However, it needs to be noted that the

National Defense Authorization Act is not a permanent piece of legislation, in that it is passed on an

annual basis and can therefore change from year to year.

37 American National Standards Institute, Management System for Quality of Private Security Company

Operations: Requirements with Guidance, ANSI/ASIS PSC.1-2012, available from

www.acq.osd.mil/log/ps/.psc.html/7_Management_System_for_Quality.pdf (now ISO 18788).

38 Office of the Assistant Secretary of Defense for Logistics and Materiel Readiness, “Private security

companies”, available from www.acq.osd.mil/log/ps/psc.html.

39 Act No. 51/2010, art. 59.

40 Federal Activities Inventory Reform Act of 1998, Public Law 105-270, p. 112, Stat. 2382, and

Federal Acquisition Regulation of 2005.

41 Office of Management and Budget, circular A-76, and Office of Federal Procurement Policy, policy

letter 11-01.

42 Federal Acquisition Regulation, sect. (d) (19); and Office of Federal Procurement Policy, policy letter

11-01, appendix B, sect. 9.

43 Office of Federal Procurement Policy policy letter 11-01, part 3, definitions (b) (1).

44 Federal Act on Private Security Services Provided Abroad, of 2013, art. 8.

45 The Costa Rican regulation regarding private security services, No. 8395/2003, and regulation No.

33128-SP/2006; and the Mexican federal law on private security, of 2006, art. 32 (X).

46 Regulation No. 33128, art. 29 (3).

47 Law No. 83-629, arts. 10, 11-3 and 11-7.

and Hungary,48 prohibit former police or military personnel, those in the national security

services performing official duties, and individuals who are not such staff but contribute to

related official duties, from participating in private military and security companies’

activities.

17. On the use of force and firearms, the reviewed States typically follow two

approaches. Some choose to allow private security company personnel to carry and use

firearms under certain conditions,49 and others opt for prohibiting the use of firearms and

provide a list of exception clauses with guarantees.50 The United States generally prohibits

personnel of private military and security companies from using force, but lists exceptions

and conditions under which the use of force is allowed. Furthermore, “contractor personnel

are only authorized to use deadly force in self-defence”51 and “when such force reasonably

appears necessary to execute their security mission to protect assets/persons”.52 Other good

examples are from Kyrgyzstan and the Republic of Moldova, where the laws specify

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. The law of the Republic of Moldova

includes further provisions: the security personnel or detective must issue a prior warning

regarding his or her intention to use force.

18. Regarding training on the rules of engagement and the use of force, some States,

including China, the Philippines and Uganda, govern the circumstances under which private

security service providers may use firearms. The Democratic Republic of the Congo and

Azerbaijan provide rules on the use of high-calibre weapons or special devices that usually

involve lethal force. Personnel of private security companies are prohibited from patrolling

and carrying arms that are normally reserved for the military and the police, in the

Democratic Republic of the Congo. The United States law specifies that contractor

personnel can only be armed for individual self-defence based on national and international

law53 and if “weapons familiarization, qualification, and briefings regarding the rules for

the use of force have been provided”.54

III. Gaps in national legislation

19. Notwithstanding the good practices mentioned, the global study showed that

regulatory gaps were prominent.

A. Scope of application

20. The global study shows that with the exception of the United Kingdom of Great

Britain and Northern Ireland (which adopts a self-regulatory approach within the

framework of the British Association of Private Security Companies), and Kenya and

48 Act CXXXIII of 2005, art. 2.

49 As the Working Group saw from the global analysis, most of the States reviewed from the Asian and

Latin American regions followed this path.

50 For example, Burkina Faso, Côte d’Ivoire, the Democratic Republic of the Congo, the Gambia,

Hungary, Kyrgyzstan, Morocco, Nigeria, the Republic of Moldova, Switzerland and the United States

of America.

51 48 Code of Federal Regulations, chap. 2 (10-1-11 edition), (b) General, (3) (i); 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, General, (ii) (B) (3) (i).

52 48 Code of Federal Regulations, chap. 2 (10-1-11 edition), (b) General, (3) (ii); 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, General, (ii) (B) (3) (ii).

53 Department of Defense instruction No. 3020.41, 20 December 2011, part 4 (e) 2 (a).

54 Ibid., part 4 (e) 2 (b).

Swaziland (which have no legislation that addresses the private security sector), 55 all

countries analysed covered mainly the activities of private security companies, with only

very few or no provisions at all on private military companies and their services. However,

the present report commonly refers to the term “private military and security companies” in

order to cover the various types of companies in the diverse countries that have been

reviewed in the global study.

21. The Working Group notes that private security companies also carry out functions

that can be deemed “military” and that this issue needs to be addressed or assessed further.

It is therefore important to assess the types of services offered by private security

companies.

22. Regulated activities of private security companies include, in general, the protection

and patrolling of sites and the protection and guarding of persons,56 but this list is often

extended with further activities. In Europe, Central America and anglophone Africa, the

services of private security companies cover mostly surveillance, the transportation,

protection and shipment of cash, jewels, precious metals and other valuables, and the

conducting of investigations. 57 The United Kingdom law covers services provided by

security consultants, and in Switzerland, activities related to traffic management, assistance

to public authorities, the transport of detainees, and private detective services are also

regulated. In Central America, private security companies also engage in the maintenance

of order at public events, bodyguard services, transportation, the manufacture and

marketing of security equipment and systems, and the provision of security advice.58 In

South American national legislation the range of activities of private security companies is

more detailed and covers services including obtaining evidence for civil lawsuits. 59

Zimbabwean law covers activities of private investigators, which is also the case for the law

of the Philippines and of Singapore. China and Sri Lanka are unique in covering services to

the public sector. In the United Arab Emirates law, government bodies are included in the

definition of private security companies, suggesting that a government body can be used to

offer private security services.

B. Licensing, authorization and registration of private military and

security companies

23. With regard to the bodies in charge of licensing and regulation of private military

and security companies, the analysis shows that no specific bodies exist on private military

and security companies. These functions are performed by the units or departments within

ministries responsible for internal security60 or justice61 or defence,62 or by a specialized

intergovernmental body63 or a central government64 or local government65 authority.

55 There is currently no law that specifically deals with the private security industry in Kenya, whereas

the Swazi legislation does not regulate the industry, the enterprises or companies, or even the security

officers, but only the “wages” associated with those involved in the security industry, through the

Regulation of Wages (Security Services Industry) Order, 2011.

56 See Burkina Faso, Law No. 032/2003, art. 23, and Decree No. 2009-343, art. 2; Côte d’Ivoire, Decree

No. 2005-73, art. 2, para. 1; Democratic Republic of the Congo, Ministerial Decree No. 98/008, art. 1;

Morocco, Law No. 27-06, art. 1; Senegal, Decree No. 2003-447; and Tunisia, Decree No. 2002-81,

art. 1 (a).

57 France has Law No. 83-629; Switzerland has the Concordat on security companies, of 1996, and the

decree on the hiring of private security companies, of 2007; Hungary has Act No. CXXXIII, of 2005;

and the United Kingdom has the Private Security Industry Act, of 2001.

58 See A/HRC/30/34, para. 40.

59 In the Province of Buenos Aires, Argentina, Act No. 12.297/1999 covers the transportation, guarding

and protection of any legal transfer, except the transport of funds. It also covers private services, such

as obtaining evidence for civil law suits.

60 For example, in the reviewed States in Central and South America (with the exception of Colombia),

in some countries of anglophone Africa (such as the Gambia, Nigeria and Zimbabwe) and of

francophone Africa (such as Burkina Faso, Côte d’Ivoire, the Democratic Republic of the Congo,

24. As for the registration of private security companies, apart from a few States’

legislation that provides the possibility of a specific register, 66 States require either

voluntary self-registration67 or registration in the general trade and commerce register.68

25. As a precondition for obtaining a licence, States have a variety of requirements,

including “suitability” or “good conduct/good behaviour”, “moral standards”, qualifications

and training, and a clean criminal record. In francophone African countries, for example,

the requirements of “good behaviour”69 and “moral standards”70 seem to be considered the

most relevant, whereas in all reviewed States in Asia, it is equally important that private

security company employees possess certain training qualifications and have clean criminal

records. In Latin America, States put specific emphasis on the criteria of securely storing

firearms used by private security company personnel, and they generally require additional

information on the company’s installations, equipment and firearms. Another important

requirement in Central American States is that the owners of private security companies

must be nationals;71 the relevant laws provide only a very limited margin of operations for

foreign companies.72 This element is similarly important in some of the countries of the

Commonwealth of Independent States, which stipulate that foreign security organizations

are not allowed to conduct their operations within their territories.73 In addition, in the

legislation of South American States, the “suitability” and the “good moral character” of

private security company employees are typically required to be certified by the police or

by court records, and contracting third-party liability insurance 74 or insurance for

employees75 is also a common requirement for obtaining a permit.

C. Selection and training of personnel of private military and security

companies

26. Among the minimum selection criteria for personnel, States often list a variety of

requirements, including the applicant’s clean criminal record, 76 fitness for the job, 77

Mali and Tunisia), as well as in Asia (Malaysia and Singapore) and in Europe (France and the United

Kingdom).

61 For example, in New Zealand.

62 For example, in Botswana, and in some cases in Latin America.

63 For example, in Cameroon, Colombia, Kenya, Lesotho, Namibia, Nauru, Papua New Guinea, Senegal

and Sierra Leone.

64 For example, in China, India, Pakistan, the Philippines, Sri Lanka and the United Kingdom.

65 For example, in most of the States of the Asian region, or in federal States such as China, India and

Pakistan. Moroccan law provides for a “competent administrative authority” in charge of reviewing

the requests for authorization, but does not specify further responsibilities or the relationship with a

supervising or monitoring ministry or other government body.

66 For example, in States of Latin America (Brazil, Chile, Colombia, Ecuador and Peru, and also in the

Province of Buenos Aires, in Argentina), and in Cameroon, Pakistan, the Philippines and Sri Lanka.

67 For example, in Morocco and Tunisia.

68 For example, in general in the European States reviewed and in the Asian region.

69 See, for example, the legislation of Tunisia.

70 See, for example, the relevant laws of Burkina Faso and Senegal.

71 See, for example, the laws of Mexico and Panama.

72 See, more particularly, the legislation of Costa Rica and Honduras.

73 See, for example, the legislation of Azerbaijan and Uzbekistan.

74 For example, in the Plurinational State of Bolivia, Colombia and Ecuador.

75 For example, Brazil and Chile.

76 Burkina Faso, Costa Rica, Côte d’Ivoire, El Salvador, Lesotho, Mali, Morocco, Panama, Senegal and

Tunisia, and the countries of South America and of the Commonwealth of Independent States, as well

in general.

77 For example, in Costa Rica, El Salvador and Guatemala, a psychological and physical examination is

required. In Brazil, Chile, Ecuador, Peru and Uruguay, and in the Province of Buenos Aires, a

certification of physical and psychological aptitude is required. Kyrgyzstan excludes individuals with

incapacity due to physical and mental disabilities, and Azerbaijan requires medical evidence in case

of psychiatric disorders. In the Pacific region, the national legislation of Australia and of Papua New

Guinea also sets as a requirement the fitness of the applicant.

nationality,78 age,79 good moral standards,80 financial position81 and education,82 as well as

the applicant’s competences and experience.83 At the same time, selection requirements

vary significantly (for example, regarding the criteria relating to the applicant’s criminal

record, the selection requirements vary in relation to the gravity of the crimes involved).84

Also, while some laws are very detailed, 85 others have no specific description of the

selection process. 86 Furthermore, with only a very few exceptions (such as Guatemala,

Switzerland, and the Province of Buenos Aires), the Working Group found no laws

containing reference to international human rights and humanitarian law as part of the

selection process.

27. As far as training the personnel of private security companies is concerned, overall

there is an inconsistent trend. States in general place emphasis on the necessity of providing

training to private security company personnel. Some States set adequate training as a

prerequisite to the selection of personnel.87 Other countries arrange such trainings only

later, after the selection process, typically through those entities or organizations that are

responsible for regulating and/or controlling the private security sector, 88 or through

outsourced education centres.89

D. Prohibited and permitted activities of private military and security

companies

28. Legislation generally permits private security companies to guard and protect

persons and property or goods.90 Mexican federal law even covers security services for

obtaining information, including background reports, as well as the installation and sale of

armour systems.

29. Many of the laws reviewed also specify that the permitted activities can only be

carried out on private properties91 and that the companies are required to indicate that their

activities are private in nature,92 in order to differentiate themselves from the armed forces

and the national police or other public security forces. In the Hungarian legislation, for

78 Staff of private military and security companies need to be nationals in Honduras, Mexico and

Nicaragua and in Cuba they need to be resident in the country. (In Costa Rica and El Salvador

personnel of such companies may be foreign residents.) Regarding South America, Brazil, Chile,

Colombia and Ecuador require that personnel be a national of the country concerned, while Peru

permits guards to have foreign nationality, and the Plurinational State of Bolivia permits foreign

advisers and requires an INTERPOL background certificate. In Colombia, partners of private security

companies and members of private security cooperatives must be native-born. In Azerbaijan,

Azerbaijani citizenship is required for the selection process.

79 Private military and security company personnel must be adults, according to the national legislation

in Latin American countries, as well as in Azerbaijan, Kazakhstan, Kyrgyzstan, Nauru, New Zealand

and the Republic of Moldova.

80 For example, Burkina Faso, Côte d’Ivoire, Mali, New Zealand and Senegal.

81 For example, in Nauru.

82 A minimum level of education is required in the States of Central and South America, as well as in

New Zealand.

83 For example, in Australia and Papua New Guinea.

84 Examples can be found among the francophone African countries reviewed, as well as among the

analysed countries of the Commonwealth of Independent States.

85 For example, in China, Pakistan, the Philippines and Singapore.

86 In general, in the national legislation in Central America, but also in Tajikistan and Uzbekistan.

87 For example, South Africa, all reviewed States in francophone Africa, and Australia, Azerbaijan,

Kazakhstan, Kyrgyzstan and the Republic of Moldova.

88 For example, in Malaysia, Namibia, New Zealand, the Philippines, South Africa and the United States

of America.

89 For example, in Azerbaijan, Kazakhstan, Kyrgyzstan, Peru and the Republic of Moldova.

90 In the region of the Commonwealth of Independent States, the information available to the Working

Group was limited to Azerbaijan and Kazakhstan.

91 For example, such reference is included in the legislation of francophone African countries, as well as

Central and South American States.

92 See more in the laws of France and of the francophone African countries.

example, it is noted that those involved in private security activities have no public

authority powers, must wear a uniform, cannot use the titles and insignia of the authorities

and cannot prevent the authorities from carrying out their activities. 93 Similarly, the

legislation of Central American States provides that to avoid confusion, uniforms,

credentials, logos and vehicle colours similar to those used by the police or the armed

forces cannot be used.94

30. In general, legislation typically prohibits all activities that private security

companies are not entitled to carry out according to their licence. In addition, in France, in

the States of francophone Africa, and also for example in Uruguay and in the Province of

Buenos Aires, private security companies are not allowed to be involved in labour conflicts

or in political or religious events, or to gather information on political, religious or trade

union opinions. Furthermore, private military and security companies are in general

prohibited from carrying out activities reserved for the armed forces and the police. Some

States’ legislation further specifies this prohibition or provides similar provisions, including

that of the Democratic Republic of the Congo, Morocco and Tunisia, as well as that of the

Plurinational State of Bolivia, Colombia, Ecuador and Peru. In some of the reviewed

countries of the Asian region, private security companies are prohibited from conducting

criminal investigations95 or from exercising specific powers conferred on police, customs,

immigration and prison officers.96 In Central America, the list of prohibited activities is

extended to the roles played by the administration or the judiciary97 and to investigations

that are the exclusive competence of the Public Prosecutor’s Office or the national police.98

Guatemalan law is the most detailed and provides that private security cannot assume

functions that are the tasks of the Government.99

31. The legislation of the United States limits the outsourcing to private military and

security companies of “inherently governmental functions” and provides a detailed list of

those activities that “are so intimately related to the public interest as to require

performance by Federal Government employees”.100 By excluding the “inherently State

functions” from the ambit of the activities of private military and security companies, the

United States appears to draw the line between permitted and prohibited activities for

private military and security companies, with reference to combat and combat-related

activities. However, this does not specifically address “high-risk activities”, which would

include a number of functions even outside of combat. Additionally, there is no clear

enforcement mechanism for ensuring that agencies comply with the exclusion of

“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.

32. With regard to direct participation of personnel of private military and security

companies in hostilities, the study shows that with the exception of Switzerland,101 States’

national legislation does not address this specific question, and in cases where legislation

prohibits personnel of private military and security companies from carrying out certain

activities of the police and the armed forces, it is not clear whether the related provisions

apply only in times of peace or during armed conflicts as well. Regarding the involvement

of law enforcement officers in the activities of private military and security companies, the

93 Act CXXXIII of 2005, art. 2.

94 The laws of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and Panama.

95 In Malaysia and the United Arab Emirates.

96 In Malaysia and Pakistan.

97 Costa Rica.

98 El Salvador and Mexico.

99 Guatemala.

100 Federal Activities Inventory Reform Act of 1998, sect. 5.2, and Office of Management and Budget

circular A-76, Inventory Process B.1.a.

101 United Kingdom law does not define what military or security activity can be outsourced to private

companies, but there is an understanding that military activity in situations of armed conflict can be

delivered only by military personnel under the command of a commissioned officer. (See

A/HRC/22/41, para. 53, and the response of the Government of the United Kingdom to the Working

Group’s request for national legislation and regulations on private military and security companies.)

trend seen is that those few States that regulate this102 usually prohibit active or former

members of the police and the armed forces from taking part in private military and security

companies’ activities. However, the national legislation of the majority of States in the

regions that were reviewed remains silent on this point, which is concerning.

33. The inconsistent regulation on permitted activities, the difference in the scope of

prohibited activities, the lack of a clear dividing line between the functions of private

military and security companies and law enforcement authorities, and the lack of rules on

direct participation in hostilities, especially considering the growing role of private military

and security companies in armed conflicts, post-conflict situations and low-intensity armed

conflict situations, all increase the risks of ineffective control of these companies’ activities

and the potential for human rights abuses. This gives rise to challenges of enforcement,

accountability and the availability of remedies.

E. Rules on acquisition of weapons

34. The research found rather scarce information in this field, which focused mainly on

the varying means of legal acquisition of weapons. The Working Group notes that, in

general, States allow the acquisition and possession of weapons for personnel of private

military and security companies, though under very different conditions — even within the

reviewed regions. For example, in some countries, personnel of private security companies

are allowed to be armed and to possess weapons as determined by the relevant laws and

regulations,103 but elsewhere those personnel protecting people cannot be armed or perform

guard services.104 In some countries, special permits are required for the acquisition and

possession of weapons and firearms105 (and in certain countries the permit to carry firearms

must indicate the activities for which the weapon or firearm will be used).106 In others,

permission to carry weapons is subject to having undergone training, 107 or to specific

competence,108 and there are other States again where only the acquisition and possession of

special types of weapons and firearms is licensed or permitted or prohibited.109 Examples

were also found of countries in which private security service providers are not allowed to

use firearms110 or where the number of firearms or weapons is limited per company. 111

Some States also require specific measures for storing and depositing weapons.112

35. The Working Group found that most States had varying regulation regarding the

legal acquisition and possession of weapons by private security companies. Only a few

States addressed the issue of illegal acquisition and possession of weapons and had

provisions concerning penalties. Those States113 covered the subject of illegal acquisition

and possession of weapons in their Criminal Codes114 and Arms Export Control Acts.115

102 For example, the reviewed States of South America, Australia and Nauru, the majority of the

francophone African States analysed, and France and Hungary.

103 Burkina Faso, Côte d’Ivoire, France, Morocco and Tunisia.

104 Chile, Mali and Peru.

105 The Democratic Republic of the Congo, Malaysia, Singapore, Sri Lanka and Tunisia, and the States

of South America.

106 Côte d’Ivoire and Mali.

107 Pakistan, the Philippines and Singapore.

108 Sri Lanka.

109 For example, in Azerbaijan, Cameroon, Côte d’Ivoire, the Democratic Republic of the Congo,

Kazakhstan, Kyrgyzstan, Mali and the Republic of Moldova. In South American States, the general

rule is that prohibited firearms cannot be used, or that the use of certain firearms is restricted to the

police or the armed forces.

110 Plurinational State of Bolivia.

111 Chile, Colombia and Ecuador.

112 Cameroon and Tunisia, and the States of South America.

113 Australia, Tajikistan, Tunisia, the United Arab Emirates, the United Kingdom, the United States of

America and Uzbekistan.

114 Tajikistan and Uzbekistan.

115 Australia, Tunisia, the United Kingdom and the United States of America.

36. The legislation reviewed depicts a variety of regulations regarding the legal

acquisition and possession of weapons by private security companies, and the research

shows that only very few States address the question of illegal acquisition and possession of

weapons and its consequences. The Working Group notes that the wide access by personnel

of private military and security companies to weapons and firearms, and the lack of

standard methods and regulation of such companies and their personnel in relation to both

the legal and the illegal acquisition of weapons and also to trafficking in firearms, may

result in increased risks of human rights abuses and of lack of accountability for related

offences.

F. Use of force and firearms

37. The regulation on the use of force varies among States. Some States are silent, for

instance, on the use of firearms by private military and security providers, while a number

of States regulate this. Whereas certain States request personnel of private military and

security companies to meet specific regulations, developed exclusively for such

companies,116 others are satisfied with private security companies’ staff meeting the rules

governing the use of firearms by the population at large.117

38. The Working Group notes that regarding the question of allowing or prohibiting

private military and security company personnel to use force and firearms, the reviewed

countries’ legislation typically follows two approaches. Some choose to allow private

security company personnel to carry and use firearms under certain conditions,118 while

others opt for prohibiting the use of firearms119 and provide a list of exception clauses with

certain conditions.120

39. Most of the States reviewed in the Asian and Central and South American regions

allow private security company personnel to carry and use firearms, but require specific

licences, permits, authorizations or registration, 121 including information about the

ownership of the weapon,122 or define certain activities (such as duty123 or travel124) and

places (e.g. where security and guard services are provided by contract125), during which

and where the firearm is allowed to be used. Some of these States specifically note that

private military and security companies are prohibited from using undue force126 or from

using force when it is not strictly necessary.127

40. States that choose the prohibition as the general rule (and those few whose relevant

national legislation was available for analysis) provide exceptions for the use of force and

firearms by private military and security company staff, such as legitimate defence (e.g.

Burkina Faso, Côte d’Ivoire, the Democratic Republic of the Congo, Kyrgyzstan, Morocco,

the Republic of Moldova and the United States of America), necessity or exigency

(Kyrgyzstan, the Republic of Moldova and the United States of America) or both (Hungary

and Switzerland). Some of these States (Kyrgyzstan, the Republic of Moldova and the

United States of America) provide legislation on the conditions under which private

116 Burkina Faso, Côte d’Ivoire, the Democratic Republic of the Congo, Morocco and Uganda.

117 For example, in Lesotho and Mauritius.

118 As the Working Group saw from the global analysis, most reviewed States of the Latin American and

Asian regions follow this path.

119 The Gambia and Nigeria.

120 For example, Burkina Faso, Côte d’Ivoire, the Democratic Republic of the Congo, the Gambia,

Hungary, Kyrgyzstan, Morocco, Nigeria, the Republic of Moldova, Switzerland and the United States

of America.

121 See, for example, the legislation of Cuba, Malaysia, Singapore and Sri Lanka.

122 For example, in El Salvador and Panama.

123 In general, in all reviewed Central American countries.

124 For example, in Panama.

125 In the national legislation of South American States.

126 Guatemala.

127 Costa Rica.

military and security companies may exceptionally use force or firearms. Again, there is no

uniformity on the regulation of this issue.

41. While some good examples exist (Azerbaijan, the Democratic Republic of the

Congo, Kyrgyzstan, the Republic of Moldova and the United States of America), most of

the reviewed States’ national legislation has no specific rules on the use of high-calibre

weapons or special devices and equipment that usually involve lethal force. Only very few

States’ national legislation offers details about mandatory training of private military and

security company personnel on the use of force and firearms (the Philippines, Uganda and

the United States of America, and the States of South America), and even less on the rules

of engagement of private military and security company staff (China and the United States

of America).

42. The Working Group notes with concern that in most of the cases analysed, the

requirements for the use of firearms are generally very diverse and broadly defined, the

content of the training for using firearms is vaguely described, regulations on the type and

the calibre of firearms that are allowed to be used is usually missing, only very few

concrete regulations were found on the use of force and firearms in the light of human

rights standards, and only few rules were found to punish the firearms-related behaviour of

private military and security company personnel more severely than that of ordinary

citizens. Furthermore, although international human rights standards require that firearms

be used proportionately, only in self-defence or defence of third persons and in a manner

likely to decrease the risk of unnecessary harm, States, with some exceptions, do not

provide sufficiently detailed regulations, requirements and procedures for compliance with,

and accountability and remedies for violations of, human rights norms in connection with

private military and security companies’ possession and use of firearms.

G. Accountability

43. Most States have an established system for monitoring the activities of private

military and security companies, which is generally administered by the agency that

authorizes or licenses such companies and that is in charge of conducting regular

inspections.128 However, the monitoring systems are usually very broad, vary in form and

content, or lack specifics on the content of monitoring activities and inspections. 129

Determining compliance with the standards of international human rights law and, where

applicable, of international humanitarian law is normally not part of the monitoring bodies’

mandate.

44. With very few exceptions, States have no detailed rules on reporting obligations as

regards infractions or violations of domestic and/or human rights law committed by private

military or security companies. Basically, States do not provide much detail about the

nature of infractions or violations that are required to be reported on,130 and/or they cover

only violations of provisions regarding permissible activities, licensing, authorization,

recruitment and other administrative processes, which result mostly in administrative

sanctions applied by the authorizing or licensing agencies in the form of a warning, a fine, a

temporary suspension of the company’s activities, or withdrawal of authorization. 131

Among all the laws analysed, the Working Group found examples of provisions for

reporting on or punishing offences or violations related to international human rights law or

international humanitarian law only in Colombia, Guatemala, Peru, Switzerland and

Tajikistan.

128 See, more particularly, the examples of the Plurinational State of Bolivia, Brazil, Chile, Côte d’Ivoire,

Ecuador and Uruguay, and of the Province of Buenos Aires, as well as the examples of Kazakhstan,

Kyrgyzstan, New Zealand, the Republic of Moldova and Tajikistan.

129 As was noted by the Working Group, for example, in relation to the countries of the Commonwealth

of Independent States.

130 See, for example, Côte d’Ivoire, the Democratic Republic of the Congo and Senegal.

131 See, for example, the States of francophone Africa, Costa Rica and Guatemala, the States of South

America, and Nauru, New Zealand and Papua New Guinea.

45. It is also worrying that only in very few States does national legislation132 expressly

provide for penal and civil sanctions for violations committed by private military and

security companies. In addition, the Working Group notes with particular concern the laws

of India and Pakistan, which even include provisions for immunity for violations committed

in “good faith” and exempt the persons involved from liability for indemnities. The global

analysis shows that only very few States’ national legislation (China, Pakistan, the

Philippines and Switzerland) contain provisions on any forms of remedy for victims.

46. Without a proper and standardized monitoring mechanism for the activities of

private military and security companies and an effective reporting, sanctioning and remedy

system related to violations of the law, including human rights law, there is the risk that

private military and security companies and their personnel in the countries of origin,

registration and operation are not held accountable and liable for the human rights

violations they commit during their operations.

47. The Working Group also notes that the absence of extraterritorial jurisdiction in the

majority of jurisdictions studied is a significant impediment to accountability and to the

availability of judicial remedy in the home State, considering the transnational nature of

companies, particularly large companies, within the private military and security industry.

48. Additionally, with regard to territorial States, there is a lack of uniformity in national

legislation on measures to assure mutual legal assistance, which can also impede

accountability and access to remedies. Many States, for example, will not extradite their

own nationals. Some States will only extradite where the offence in the seeking State is also

an offence in the sending State.

IV. Analysis

49. Considering the transnational nature of private security and military services, as well

as the generally significant likelihood of use of force by personnel of such companies and

of their involvement in hostilities, the Working Group stresses that the different approaches

and regulatory gaps demonstrated in the present study create potential risks to human

rights, including the right to life, the right to security, prohibition of arbitrary deprivation of

liberty, prohibition of torture and of cruel, inhuman or degrading treatment or punishment,

and the right of victims to effective remedies. Regulatory gaps in national legislation can

also provide incentives for misconduct and human rights violations by personnel of private

military and security companies, and may result in serious undermining of the rule of law

and of the effective functioning of democratic State institutions responsible for ensuring

public safety.

50. The results of the global study clearly indicate the challenges that the privatization

of security poses to various States. Most of the regulations analysed do not address

military-like activities or private military and security companies directly. This is despite

the fact that private companies are normally involved in various other activities as well,

besides security, such as military services, use of force, armed conflicts and other complex

scenarios such as the so-called war on drugs, or they often participate in hostilities in other

ways. If it does not cover all activities that are actually carried out by private military and

security companies, national legislation may overlook certain private military and security

company activities that include an increased risk of human rights violations undertaken by

private actors. Further, the global study shows that only very few States’ legislation deals

with military and security services provided abroad or provides for extraterritorial

jurisdiction.

51. It is therefore useful to define, in terms of classifications, the activities or services of

a company. These classifications can be used to assess which activities increase the risk of

human rights violations when undertaken by private actors. The fact that companies provide

a variety of military and security services across borders, the general likelihood of private

military and security company personnel’s use of force and involvement in hostilities

132 Such as in Burkina Faso, Côte d’Ivoire, Mali, Morocco and Tunisia.

outside of their States of registration and origin, the lack of extraterritorial application of

the laws concerned, and the missing provisions on the export of security and military

services, are significant impediments to accountability and to the availability of judicial

remedies in the home State. The lack of a dedicated body responsible for the licensing,

registration, vetting and monitoring of private military and security companies is also

problematic.

52. The global study has shown that reference to international human rights and

international humanitarian law standards in licensing and authorization procedures is not a

common practice. Neither is the exclusion of applicants from consideration for licensing

and authorization for private military and security services who have a record of human

rights violations. The study also shows an absence of vetting mechanisms or training on

international human rights law and international humanitarian law for the licensing of

individuals. Taking into account the nature of private military and security company

activities and their potential effect on their environment, it is highly risky not to have a

standard system of licensing and authorization that refers to international human rights law

and international humanitarian law.

53. The Working Group notes that, in general, States have detailed selection criteria and

place emphasis on the necessity of providing training to staff. However, there is a lack of

uniformity in the laws reviewed with regard to the selection requirements and to the content

of the training of private military and security company personnel. The reviewed national

legislation uses a diverse set of selection criteria and often focuses on form and procedural

conditions rather than on content. Also, regulations on the training of private military and

security company personnel vary significantly in terms of mandatory and optional trainings,

their content, their duration, and references to international human rights law and

international humanitarian law. Apart from a few exceptions, the laws reviewed do not

include in their selection and/or training procedures any references to international human

rights law or international humanitarian law, nor do they take into account any records or

reports of human rights violations committed by private military or security company

personnel in determining whether or not to select the individual concerned.

54. There were also weaknesses in the requirements regarding the training and

qualifications of private security company personnel, especially when only a relatively low

level of education is required. It is essential to have minimum standards in both respects,

which ensure that personnel acquire basic knowledge and internalize human rights

standards as the ethical and legal framework for private military and security activities.

They must act responsibly in situations involving possible legitimate use of force,

especially since all regulations permit the use of weapons.

55. The legislation reviewed varied among the States with regard to the legal acquisition

and possession of weapons by private security companies and the research shows that only

very few States address the question of the illegal acquisition and possession of weapons,

and its consequences. The Working Group notes the high risk of human rights violations

resulting from the wide access by personnel of private military and security companies to

weapons and firearms. The lack of standard methods for private military and security

companies, and the lack of regulation on such companies and their personnel, as regards not

only the legal but also the illegal acquisition of weapons, and trafficking in firearms, may

result in increased risks of human rights abuses and a lack of accountability for related

offences.

56. While much of the States’ legislation analysed has a system established for

monitoring the activities of private military and security companies, the monitoring systems

are usually very broad, vary in form and content, or completely lack specific rules on the

content of monitoring activities and inspections. The study shows that in general, national

legislation does not explicitly make compliance with the standards of international human

rights law and international humanitarian law the subject of monitoring bodies. The

Working Group also notes that the vast majority of States have no detailed legislation on

reporting obligations for infractions or violations of domestic and/or human rights law

committed by private military and security companies. The Working Group found

provisions for reporting on or punishing offences or violations related to international

human rights law or international humanitarian law in very few countries. Also, very few

States’ national legislation expressly provides for penal and civil sanctions for violations

committed by private military and security companies, and even fewer States’ national

legislation contains provisions on any forms of remedy for victims. Without a proper and

standardized monitoring and accountability mechanism for the activities of private military

and security companies and an effective oversight, reporting, sanctioning and remedy

system related to violations of the law, including human rights law, there is the risk that

private military and security companies and their personnel in the countries of origin,

registration and operation are not held accountable and liable for the human rights

violations they commit during their operations.

57. The Working Group found great diversity and ambiguity in the description of

permitted and prohibited activities, a lack of a clear dividing line between the functions of

private military and security companies and law enforcement authorities, and a lack of rules

prohibiting direct participation in hostilities in armed conflict — an especially significant

concern considering the growing role of private military and security companies in armed

conflicts, post-conflict situations and low-intensity armed conflict situations. This gives rise

to challenges of enforcement, accountability and the availability of remedies to victims of

violations.

58. The private military and security industry often operates in complex environments

characterized by weakened rule of law. The Working Group believes that accountability

under such conditions requires the increased exercise of extraterritorial and universal

jurisdiction.

59. The Working Group is also of the view that regulation of non-State actors, such as

private security providers, requires a multidimensional approach that includes improved

international norms and standards, effective national regulation and enforcement, and

industry-led efforts to improve compliance with human rights standards. The Working

Group has been involved in various efforts at each of these levels, and in the present report

focuses on domestic legislation. This global study of national legislation shows that, despite

commendable efforts, norms and standards at the national level leave many gaps in the

regulation of private military and security companies and in regard to their accountability in

the face of human rights violations.

60. Given the regulatory gaps that have been identified, the Working Group is pleased at

the development of voluntary initiatives such as the Montreux Document Forum and the

International Code of Conduct for Private Security Service Providers, which have clearly

led to improved standards across the industry. It is also encouraging to see that many

companies have signed up to the International Code of Conduct for Private Security Service

Providers’ Association since its establishment and that the Montreux Document is also

garnering a growing number of signatories. These are important complementary initiatives

for the strengthening of regulation on private military and security companies.

61. However, an assessment of self-regulatory and voluntary initiatives such as those

mentioned, as well as this global study on national legislation, show that self-regulation and

voluntary initiatives cannot in themselves ensure comprehensive accountability for human

rights violations and provide effective remedies for victims. Only clear legal norms backed

by State enforcement can do this. The Working Group supports the incorporation of these

norms into an international legally binding instrument rather than relying on self-regulation

and voluntary initiatives that are non-binding.

V. Conclusions and recommendations

62. The Working Group’s global study indicates that States’ approach to

regulation of an increasingly transnational industry is patchy and inconsistent. The

ever-increasing privatization of security and military functions and the general

growth of the private military and security industry across international boundaries

raise serious questions about the legitimacy of the private use of force and the capacity

of States to control their territory effectively and to provide strong accountability

mechanisms and effective remedies to victims of human rights violations committed

by private military and security companies. The Working Group is concerned that

weak national legislation and enforcement mechanisms, along with ad hoc and

fragmented industry self-regulation, cannot address human rights concerns

effectively.

63. Licensing, registration, vetting of personnel, the scope of permissible and

prohibited activities, the use of force, the use of firearms and other weapons,

accountability and remedies for violations — especially in the light of the

transnational nature and activities of private military and security companies — are

all areas in which national legislation is wanting.

64. Even though a private military or security company may be registered in State

A, may recruit personnel from States B, C and D, and may enter into a contract with

State E (or a private entity in State E) to perform services in State F, few countries

have national legislation that covers the activities of private military and security

companies abroad. Considering the transnational nature of private security and

military services, insufficient national regulation seriously weakens the rule of law.

Where borders between countries are porous, it is necessary to fill the gaps and

promote international, regional and subregional agreements for the regulation of

private military and security companies, to effectively protect the rule of law, human

rights, and, especially in conjunction with the use of private military and security

companies in extractive industries, the exercise of the right of peoples to self-

determination. The Working Group encourages States to promote discussion of the

role of private security companies in the context of regional and international

security, and therefore incorporate such discussions into the agendas of

intergovernmental, regional and subregional organizations.

65. In order to ensure the restriction of the use of force to that which is necessary,

mandated and proportional, in accordance with international law, regulation is

necessary to outline clear conditions regarding the use of force, especially in relation

to the right to self-defence. There should also be some consideration given to the

distinction between offensive and defensive use of force. It should be noted that while

the distinction might be workable in non-armed-conflict contexts governed by

international human rights law, it does not work in armed conflict, where defending a

legitimate military objective (i.e. being a voluntary human shield) amounts to direct

participation in hostilities and renders private military and security company

personnel targetable under international humanitarian law.

66. The Working Group welcomes the strengthening of national legislation to fill

the regulatory gaps that have been identified in its global study. The Working Group

also acknowledges the valuable impact of the Montreux Document and the

International Code of Conduct for Private Security Service Providers in improving

regulatory standards across the private military and security industry. However, both

national legislation and voluntary initiatives have limitations in ensuring

accountability and access to effective remedies when human rights violations are

committed by private military and security company personnel, particularly in

transborder contexts.

67. The Working Group thus reiterates its call for an international legally binding

instrument 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 legally binding instrument can provide a standard

regulatory framework and single dedicated body on issues related to the activities of

private military and security companies, including accountability and the availability

of effective remedies for victims.

68. A body established by an international legally binding instrument could be

responsible for the licensing, regulation and monitoring of private military and

security companies and could incorporate clear human rights and humanitarian law

standards into contracting, licensing and monitoring procedures. Such procedures

could also be the basis for due diligence, to introduce human rights-based vetting

mechanisms as well as mandatory legal training on international human rights and

international humanitarian law standards as a criterion for obtaining a licence to

operate and for subsequent licence renewals. This instrument could go beyond mere

compliance with selection-related formalities, instilling respect for rights and

establishing the responsibility to impose concrete sanctions for infractions. Selection

procedures and background checks must be improved, with training requirements

that make specific reference to international human rights and international

humanitarian law.

69. A distinction must be drawn between the activities of private military and

security companies and State authorities. An international legally binding instrument

could describe the legitimate role and functions of private military and security

companies, and can provide for the prohibition of the involvement of private military

and security company personnel in inherently governmental functions such as combat

or military activities.

70. States should also consider and implement regulations on the rules and

methods of acquiring, exporting, importing, possessing and using weapons and to

ensure that private military and security company personnel worldwide are also held

accountable for illegal acquisition of weapons and illicit trafficking in arms.

71. An international legally binding instrument could also strengthen provisions on

the accountability of private military and security companies and their personnel to

the government of their country of origin, registration or operation, and establish, for

this purpose, standardized and effective accountability mechanisms to ensure the

enforceability of regimes regulating the activities of private military and security

companies. Such mechanisms would establish penal accountability and civil liability of

both individuals and corporate actors for human rights violations, as well as a

framework for oversight, and for reparation and remedy for victims.

72. As further guidance to States, the Working Group prepared a concept note for

consideration during the fourth, fifth and sixth sessions 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. The concept note

incorporates critical elements to inform potential discussions on a possible

international legally binding instrument on private military and security companies.

These elements were identified as a result of expert consultations, meetings and

discussions undertaken by the Working Group with States, civil society organizations

and various stakeholders. The concept note is accessible on the website of the Working

Group133 and the open-ended intergovernmental working group on private military

and security companies.

73. Regarding the various conventions on mercenaries, the Working Group calls

upon States parties to ratify and incorporate the United Nations and African Union

mercenaries conventions’ standards into their national legislation.

133 See www.ohchr.org/EN/Issues/Mercenaries/WGMercenaries/Pages/IssuesFocus.aspx.