While States have traditionally been considered to have a monopoly on the use of force, military and security functions have increasingly been contracted out to the private sector. The number of contractors now exceeds the number of military personnel in the United States, (Amnesty International USA), which has outsourced key security and military support to private military and security companies in Iraq and Afghanistan.
Individuals working for PMSCs have engaged in a number of human rights abuses, including torture of detainees, shootings and killings of innocent civilians, destruction of property, sexual harassment and rape, human trafficking in the recruitment of third-country nationals, weapons proliferation, and participation in renditions. (Amnesty International USA). For example, in 2015, a former Blackwater Worldwide security guard was found guilty of killing 14 unarmed Iraqi civilians in 2007 and sentenced to life in prison. (UN OHCHR). Security contractors hired by the world’s largest gold-mining company, Barrick Gold Corporation and its subsidiary, African Barrick Gold, have been accused of raping, gang-raping and killings in Porgera, Papua New Guinea, and in North Mara, Tanzania, respectively. In 2011 UK-based mining company, Monterrico Metals, reached an out-of-court settlement with 33 peasant farmers who alleged that the company’s hired security guards colluded in human rights violations against them, which included torture during protests at the Rio Blanco project in 20005. (UNHCR).
While there are numerous reports of human rights abuses by these companies, a lack of clarity exists on the operative mechanisms to hold them legally accountable.
The UNGPs firmly establish the duty of business enterprises to comply and respect applicable laws and internationally recognised human rights, even when they are faced with conflicting requirements. They recognise that there is an increased risk of being complicit in gross human rights abuse in conflict-affected situation, and urge business enterprises to address this risk by treating it as a legal compliance issue. Furthermore, to avoid exacerbating adverse human rights impacts in complex contexts, such as conflict-affected areas, businesses are encouraged to consult with external, credible, independent experts in government, civil society, national human rights institutions, and relevant multi-stakeholder initiatives. (UNGP 23 and Commentary).
Notwithstanding the responsibilities incumbent on PMSCs, States also have a duty to ensure the protection, respect, and remedy of human rights. This includes ensuring that people who have been abused within their territory and/or jurisdiction have access to effective remedy. (UNGP 25)
One of the first responses to calls for regulation of security companies came from the Swiss Government in the form of 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 (Montreux Document) adopted on 17 September 2008 by 17 states. This was the first international document to describe international law as it applies to the activities of private military and security companies (PMSCs) whenever these are present in the context of an armed conflict. It also contains a compilation of good practices designed to assist states in implementing their obligations under international law through a series of national measures. This was followed by a voluntary multi-stakeholder initiative convened by the Swiss government that led to the development by, industry, civil society and governments of the International Code of Conduct for Private Security Providers (ICoC). It sets out private security industry principles and standards based on international human rights and humanitarian law, as well as aiming to improve the accountability of the industry thanks to an independent oversight mechanism.
Further efforts on the issue include that of the open-ended intergovernmental working group that seeks elaborate on an international regulatory framework, including through the option of a legally binding instrument on the regulation, monitoring and oversight of the activities of PMSCs (Draft of a Possible Convention on PMSCs for Consideration and Action by the Human Rights Council). This is in line with the UN Human Rights Council Resolution 10/11 of 2009 that specifically requested (paragraph 13) the UN Working Group look at “the use of mercenaries as a means of violating human rights and impeding the exercise of the rights of peoples to self-determination” and: “(a) consult with intergovernmental and non-governmental organizations, academic institutions and experts on the content and scope of a possible draft convention on private companies offering military assistance, consultancy and other military security-related services on the international market (…)”.
At the European level, the European Parliament adopted a resolution on 4 July 2017 regarding the use of private security companies (2016/2238(INI)). The resolution urges “the Commission and the Council to come forward with EU standards for private security companies in order to enhance transparency and democratic control”. Specifically, it intends to ensure that the use of private contractors is limited to logistical support and protection of installations, and that private security companies respect minimum requirements on accountability, the screening of staff and reporting on misconduct, while staying away from tasks usually reserved for the military.
Implementation of the existing regulations is highly dependent on states’ willingness to include these norms and standards in their national policies and laws and particularly, in national procurement and contracting policies, as indicated in the UN Guiding Principle 6, “States should promote respect for human rights by business enterprises with which they conduct commercial transactions.” With intergovernmental organisations and states often the largest single purchasers of security related services, they could use their purchasing power to encourage the implementation of human rights standards for private security operations via adequate provisions in contracts and tender documentation, as well as commercial incentives that could prove effective in inducing private security providers to adhere to rules and regulations.
At present, Switzerland is leading the efforts to ensure that security companies respect human rights in their operations. In September 2013, the Swiss Parliament adopted the Federal Act on Private Security Services provided Abroad, which prohibits Swiss-based security firms from directly participating in armed conflict abroad and any activities contributing to serious violations of human rights. It also imposes reporting requirements on prospective PMSCs and obliges Swiss-based providers to accede to the ICoCS.
With respect to security and extractive industries in particular, the Voluntary Principles on Security and Human Rights, established in 2000, aim to guide companies in the extractive sector in maintaining the safety and security of their operations within an operating framework that encourages respect for human rights. [Voluntary Principles website] Thanks to implementation of the Voluntary Principles, those:
“companies are better able to align their corporate policies and procedures with internationally recognized human rights principles in the provision of security for their operations. In so doing, companies communicate to employees, contractors, shareholders, and consumers their commitment to the Principles through sharing of best practices and lessons learned with one another, and by collaborating on difficult issues.” [Voluntary Principles website]
In November 2019, DCAF – Geneva Centre for Security Sector Governance and the Danish Institute for Human Rights published guidance on how to include private security governance within NAPs.
DCAF – Geneva Centre for Security Sector Governance also advocates for incorporating gender-based considerations into security sector reforms, noting that “[w]omen, men, girls and boys have different security experiences and priorities” and furthering that “[t]aking these differences into account when reforming the security sector strengthens the ability of security sector institutions to prevent and respond to violence related to gender roles and dynamics, such as domestic violence, sexual assault, human trafficking and anti-gay violence, and thus respond to the security needs of the public.” Likewise, the Organisation for Security and Co-Operation in Europe (OSCE) has released a Gender and Security Sector Reform Toolkit noting that since its initial publication in 2008, “tens of thousands of security and justice personnel globally have been trained on gender equality to some degree, scores of countries worldwide have adopted Women, Peace and Security national action plans, and new national legislation and international standards to tackle gender inequalities and discrimination have been passed.”
The SDGs relate to the topic of human rights and security through the SDGs on decent work (SDG 8) and peace, justice and strong institutions (SDG 16). In order to take actions to contribute to advancement of these SDGs, companies can, for instance, provide adequate training for the management and the security personnel on how to respect human rights in both private and public domains, thereby promoting safe and secure working environment for all workers (SDG 8.8), and reducing the risk of violence (SDG 16.1), among others.
Strand 1: Training in the Field of Business and Human Rights
Action Point 1.2 (page 30)
The Under-Secretariat of Human Rights of the Ministry of Justice and Human Rights will: …
Promote the introduction of contents about business enterprises and human rights in training sessions held by the Armed Forces and the Order and Security Forces, when relevant, according to the trainees’ profiles.
i. Fundamental Pillar 1: The State’s obligation to protect human rights
(…)
Strand 3 [Eje nº 3]: Dissemination of the National Action Plan on Business and Human Rights and of instruments and strategies related to the promotion of these rights
(…)
The Ministry of National Defence will hold seminars and workshops for the security forces and companies to disseminate and raise awareness of the voluntary principles of security and human rights.
The Danish NAP does not make an explicit reference to the security sector. The provisions on conflict-affected areas refer to all businesses opearting in these environments.
II- Businesses’ Responsibility to Respect Human Rights
Introduction
Actions Underway [page 37]
France encourages businesses to adhere to the UN Global Compact or other voluntary initiatives such as ISO 26000 or the Voluntary Principles on Security and Human Rights, which help spread the UN Guiding Principles.
“The UN Guiding Principles attach particular priority to assisting enterprises in respecting human rights in areas torn by conflicts. One characteristic of such areas is an especially high risk of serious human rights violations resulting from the frequent total absence of state structures. The Federal Government therefore considers that it has a responsibility to try to ensure that German enterprises operating in such conditions have no part in any adverse impacts on human rights.”
Section 2: Current Legislative and Regulatory Framework
Supply Chain [page 15]
“The Government supports the proposal by the European Commission for an EU Council Regulation which provides for the establishment of an EU-wide system for supply chain due diligence of responsible importers of tin, tantalum and tungsten, their ores, and gold originating in conflict-affected and high-risk areas. The main objective of this proposal is to help reduce the financing of armed groups and security forces through mineral proceeds in conflict-affected and high-risk areas by supporting and further promoting responsible sourcing practices of EU companies. Of course, supply chain diligence is not limited to the extractive industries and areas of conflict.”
Section 3: Actions
I. Key commitments to ensure policy coherence across government [page 17]
“Ensure coherence between the implementation of the National Plan on Business and Human Rights and Ireland’s National Action Plan on Women, Peace and Security.”
‘Luxembourg’s NAP does not explicitly address this issue’
The 2020-22 NAP states the second edition of the National Action Plan complements the first NAP. Additional information about the first NAP can be found here.
Strengthen guidance and dialogue with companies on human rights, business ethics, security and corruption in especially demanding markets.
…
2.6 Human Rights in Conflict Areas [page 26]:
There is an increasing demand from the business sector for dialogue and cooperation with the public authorities on security, risk assessment and corruption in conflict areas and demanding markets in these areas… Security personnel hired to protect Norwegian interests, whether private or public, pose a potential problem. States that hire private security guards must ensure that these comply with the state’s obligation to protect against human rights violations. The Voluntary Principles on Security and Human Rights and the International Code of Conduct for Private Security Service Providers are useful guidelines for private business enterprises on how best to ensure their security.
Although there are no binding international instruments that support State obligations in the area of private security and human rights, a series of soft law standards have been identified: the Montreaux Document, the International Code of Conduct for Private Security Providers, and the Voluntary Principles on Security and Human Rights. For its part, the State has incorporated specific national norms for the regulation and oversight of the sector’s services. The creation of Sucamec (The National Superintendence for the Control of Security Services, Arms, Ammunition, and Explosives for Civilian Use), the regulatory authority for the sector and attached to Minister (Ministry of the Interior), represents a step forward, and it is essential to strengthen the capacity of this entity to produce standards, manuals, guidelines, among others.
For their part, most private security providers have not yet adopted explicit commitments on human rights. In addition, there is insufficient public information on the due diligence processes that private security companies follow to carry out their operations. In terms of reparation mechanisms, the judicial system presents pre-existing barriers that affect access to justice, especially for the most vulnerable people, and therefore, access to judicial reparations. – page 51
Table 8: NAP strategic guidelines and objectives, and alignment with the axes of the Peru Vision 2050
Strategic guideline No. 2: Design of public protection policies to prevent human rights violations in the business environment.
Objective No. 1: Promote regulatory actions to prevent human rights violations in the corporate sphere
28.
Action: Prepare an analysis report on the application of standards for the use of force in the provision of extraordinary police services, which in turn should be extended to companies that provide and contract private security.
Background: Although some private security companies have been adopting human rights policies, private security providers (PSPs) lack provisions regulating the use of force in the scope of their activities. There are also no provisions that determine the role of the companies and/or individuals that contract private security services. A report will be prepared with the purpose of analyzing the application of standards for the use of force within the framework of the provision of extraordinary police services, which in turn will be extended to companies that provide and contract private security. This report will serve as a basis for the formulation of provisions or guidelines on the matter.
Authorisation to export arms and military equipment
The Security Policy Department of the Ministry of Foreign Affairs will take into account the United Nations Guiding Principles on Business and Human Rights in the course of assessment procedure regarding applications for granting permission to export arms and military equipment, in accordance with Articles 12 and 12 a. of the Act of 29 November 2000 on Foreign Trade in Goods, Technologies and Services of Strategic Significance for State Security and for Maintaining International Peace and Security and Article 88 of the Act of 13 June 2019 on Conditions of Business Activity related to the Production of and Trade in Explosives, Weapons and Ammunition, as well as Products and Technologies to be used for Military or Police Purposes. A criterion taken into account by the Department when assessing applications for the granting of export licences is, inter alia, a risk assessment as to whether the arms to be exported could be used for activities in violation of international humanitarian law or whether the granting of the licence would have a negative impact on respect for human rights.
Promotion of the Montreux Document on Private Military and Security Companies and the International Code of Conduct for Private and Military Security Companies
The Ministry of Foreign Affairs plans to undertake activities aimed at promoting among entities contracted to protect Polish diplomatic missions the knowledge and application of both the International Code of Conduct for Private and Military Security Companies and the principles laid down therein, as well as the Montreux Document on Private Military and Security Companies, an intergovernmental document aimed at promoting respect for international humanitarian law and human rights by private military and security companies, especially when they are present in armed conflicts. – page 30/31
Principle 6 – Commercial transactions between states and businesses
Two sets of guidelines are in preparation in cooperation with professional interest groups, namely: Guidelines on the public procurement of security services
“The Government will examine how to apply criteria aligned with the Guiding Principles in relation to Royal Legislative Decree 3/2011, of November 14, which approves the revised text of the Public Sector Contracts Law, the Law 16 24/2011 , of 1 August, of contracts of the public sector in the fields of defense and security, and other regulations in force in the same field”
Guiding Principle 7
Measure 2
“Within the framework of the implementation of the II National Action Plan on Women, Peace and Security, the Government will develop tools and action guides directed to companies on how to address the risk of sexual violence and gender violence in conflict situations.”
Measure 3
“The Government undertakes to include clauses on respect for human rights when contracting private military and security services in accordance with the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Official Officials (1990), the Code of Conduct for Law Enforcement Officials (1979) and the Arms Trade Treaty (2013).”
The Swedish NAP does not make an explicit reference to security sector, apart from provisions concerning operations in the conflict zone that refer generally to all companies operating there.
2 National Action Plan on Business and Human Rights 2020-23
2.1 Pillar 1: state duty to protect
Guiding Principles 1 to 3
2.1.2 Operational principles: legislative and information policy measures
Measure 1: Rules on the export of war material and technologies for internet surveillance
The manufacture, brokerage, export and transit of war material for recipients abroad will be authorised if this is not contrary to international law, international obligations and the principles of Swiss foreign policy. The decision on whether or not to issue authorisation for a foreign transaction must abide by the criteria laid down in the War Material Ordinance. Among the domestic factors that inform this decision is whether the country of destination respects human rights. If the country of destination violates human rights in a systematic and serious manner, it is imperative that the export licence be denied. However, authorisation might still be granted in exceptional cases if there is a low risk that the exported war material will be used to commit serious violations of human rights.
Technologies for internet and mobile communication surveillance (goods, technology and software) can be used for both civilian and military purposes, i.e. they are dual-use goods. As such, they can be an element in state repression, thereby exposing the business enterprises that manufacture or trade in them to an increased risk of becoming involved in human rights abuses. The export or brokerage of technologies for internet and mobile communication surveillance is governed by the Ordonnance sur l’exportation et le courtage de biens destinés à la surveillance d’Internet et des communications mobiles (Ordinance on the export and brokerage of technologies for internet and mobile communications surveillance). A licence to export or to broker such goods must be refused if there is reason to believe that the exported or brokered good will be used by the final recipient as a means of repression.
Objective
Indicator
Responsibility
Implement legal provisions on the transfer of controlled goods with a view to ensuring that international law and, in particular, human rights are respected.
Report on Federal Council activities to the parliamentary Control Committees detailing exports of war material, and the foreign economic policy report that includes an appendix listing all goods exported under the Goods Control Act.
EAER [Federal Department of Economic Affairs, Education and Research]
Measure 2: Security and human rights
Private security service providers are at increased risk of becoming involved in human rights abuses. The federal government should ensure that business enterprises which are subject to the Federal Act on Private Security Services Provided Abroad (PSSA) meet their human rights obligations. The PSSA prohibits security firms based in Switzerland from participating directly in hostilities in the context of an armed conflict, and from engaging in activities that could facilitate human rights abuses. In addition, it requires Swiss-based providers to become signatories to the International Code of Conduct for Private Security Providers (ICoC). Switzerland also helped to establish the International Code of Conduct Association, which requires private security providers to uphold human rights standards. The ICoC Association has a grievance procedure to address claims brought by employees or third parties regarding human rights abuses by companies. It has also produced guidance for private security providers on setting up complaints-handling schemes within their organisation, as well as guidelines on preventing sexual exploitation and abuse. Other multi-stakeholder initiatives are exploring similar mechanisms for victims of business-related human rights abuses.
Switzerland and the ICRC were the driving force behind the Montreux Document on private military and security companies. The purpose of the intergovernmental document is to promote respect for international humanitarian law and human rights by private military and security companies (PMSCs) operating in situations of armed conflict.
Switzerland is a member of the Voluntary Principles on Security and Human Rights initiative and contributes to its development. This initiative is targeted at companies in the extractive sector and offers them guidance on maintaining the safety and security of their operations within a framework that ensures respect for human rights, especially when private and/or public security providers are also involved. Switzerland is an active member of the Steering Committee and assumes the chair on a rotating basis. It is also committed to the application of the Voluntary Principles in the field and works to expand membership of the initiative.
Objective
Indicator
Responsibility
Ensure that business enterprises subject to the Federal Act on Private Security Services Provided Abroad uphold their human rights obligations.
Annual Federal Council reports on implementation of the Federal Act on Private Security Services Provided Abroad.
Concrete examples of initiatives to promote the protection of human rights by private security providers.
FDFA [Federal Department of Foreign Affairs],
Measure 5: Multi-stakeholder initiatives on business and human rights
Many multi-stakeholder initiatives on business and human rights are already under way. The federal government plays an active and major part in several of them, such as the ICoC Association and the Voluntary Principles on Security and Human Rights.
The UK 2013 NAP refers to security in the section devoted to Actions Taken [page 10]:
“To give effect to the UN Guiding Principles, we have:
(iv) played a leading role in developing the International Code of Conduct for Private Security Service Providers (ICOC). This sets out companies’ commitments to standards of behaviour, particularly on human rights, and will be independently audited. By June 2013 a total of 659 companies had signed the ICOC, including about a third from the UK.
(v) taken account of business activity in conflict and fragile states, or countries with high levels of criminal violence, within the Building Stability Overseas Strategy. Companies operating in these difficult environments have an important role to play in contributing to stability, growth, development, prosperity and the protection of human rights. We support the implementation of the OECD Risk Awareness Tool for Multinational Enterprises in Weak Governance Zones. We will also continue to help develop, and monitor implementation of, OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict Affected and High-Risk Areas. The Government will also continue to encourage higher standards in the diamond supply chain. …”
The UK 2013 NAP notes in the section on New Actions Planned that [page 11]:
“The Government will do the following to reinforce its implementation of its commitments under Pillar 1 of the UNGPs:
… (ii) Begin certifying Private Security Companies in the UK based on the agreed UK standard for land-based companies, by working with the UK Accreditation Service (UKAS) to take forward the certification process, ensuring this includes expert human rights advice. We will also agree a standard for maritime PSCs this year. We will take forward our work with the Swiss, Australian and US governments, industry and NGOs to establish an international mechanism to monitor compliance with the International Code of Conduct for Private Security Service Providers. We will engage with state and non-state clients to urge them to commit to contracting only with PSCs that are pursuing certification against recognised standards by accredited certifying bodies, and membership of the ICOC Association.
(iii) Work together with partners in the Voluntary Principles on Security and Human Rights to strengthen the implementation, effectiveness and membership of the Voluntary Principles, including through the UK Chairmanship of the initiative beginning in March 2014. …”
The UK 2016 Updated NAP refers to security sector in the section devoted to Actions Taken [page 9]:
“To give effect to the UN Guiding Principles, the Government has: (…) in March 2015 the Government concluded its chairmanship of the Voluntary Principles Initiative. During our chairmanship we worked to raise awareness of the VPI in priority countries for membership, to support UK oil, gas and mining companies to use the VPs to manage security and human rights risks more effectively, and encouraged greater openness by companies in line with the UN Guiding Principles on Business and Human Rights. More detail on our chairmanship year can be found in our 2014 annual report.”
The UK 2016 Updated NAP states, in the section discussing Government Commitments, that [page 10]:
“The Government will do the following to reinforce its implementation of its commitments under Pillar 1 of the UNGPs: (…) Continue to work closely with Voluntary Principles on Security and Human Rights Initiative (VPI) member governments, extractive companies and civil society organisations, to promote greater understanding of the Voluntary Principles and strengthen the implementation, effectiveness and membership. To maintain the momentum from our chairmanship March 2014-March 2015, we will continue to work on better corporate implementation of the Voluntary Principles on the ground. This includes maintaining dialogues with ‘host’ governments. For example, we have worked with the Government of Angola to promote the Voluntary Principles to the participating governments of the Kimberley Process Certification Scheme.”
The UK 2016 Updated NAP states in the section regarding The Nairobi Process: a Pact for Responsible Business, that [page 12]:
“Kenya has recently granted 47 oil and gas exploration licences. This has raised expectations of economic benefits by government, business and local communities. Experience elsewhere in Africa suggests that if the licences are not managed carefully then competing expectations of these actors can lead to community tensions and security risks. The Human Rights and Democracy Programme (2013/14) funded the Nairobi Process: A Pact for Responsible Business – an initiative developed by the Institute for Human Rights and Business (IHRB) in collaboration with the Kenya National Commission on Human Rights (KNCHR). It aims to embed the UN Guiding Principles on Business and Human Rights in the extractives sector in Kenya. It focused on several strands of engagement, including bringing together multinational and national extractive companies, government and civil society and communities to collaboratively address key areas of human rights concern. It also supports business to business learning, capacity building for National Human Rights Institutions in the region and advocates for the implementation of the UNGPs by the government of Kenya.”
The UK 2016 Updated NAP highlights security in the section: EHCR Projects – practical guidance for care/security sectors and Boards Directors\reporting [page 17]:
“The Commission is working in partnership with the Financial Reporting Council and Shift to publish guidance early in 2016 to help company boards to understand what they are expected to know, do and say about human rights. It will provide company boards with smart questions to ask of the business, help them to understand how human rights risks align with business risk, and bring clarity and coherence to different human rights reporting requirements. The Commission is working with the Institute of Human Rights and Business to publish guidance in early 2016 for UK businesses in the care and private security sectors. The guidance will include an assessment of the main human rights impacts in each sector and practical guidance for managers in areas such as human resources, operational delivery and procurement.”
The UK 2016 Updated NAPin theGovernment Commitments section mentions security [page 16]:
“The Government will continue to encourage UK companies in their work to respect human rights. We will: (…) provide support to Board Directors on human rights reporting and practical guidance for companies in the care and security sectors in the UK, through Equality and Human Rights Commission funded projects.”
Outcome 1.3: Leverage U.S. Government Purchasing Power to Promote High Standards
Ongoing Commitments and Initiatives [page 11]
“State and Department of Defense (DOD) Contracting with Private Security Providers: DOD requires private security companies (PSCs) with which it contracts to demonstrate conformance with standards consistent with the International Code of Conduct for Private Security Service Providers (ICOC), a set of human rights and humanitarian principles agreed upon by certain states, PSCs, and NGOs. Similarly, State requires PSCs servicing its Worldwide Protective Services II contract to confirm their conformance with the same standards and has incorporated membership-in-good-standing in the ICOC Association as a requirement for bidding on that contract. State will also review if and how such approaches may be applied to their local guard force contracts.” – Implementing Department or Agency: State, DOD
Collaborating with Stakeholders [page 13]
“Agencies within the U.S. government have been catalysts for and participants in several MSIs [multi-stakeholder initiatives], including … facilitating the launch of, and acting as a leading member of, the Voluntary Principles on Security and Human Rights (VP), which guide oil, gas, and mining companies on providing security for their operations in a manner that respects human rights; and helping to launch and actively participating in the development of the ICOC and continued involvement as a member of the board of the ICOC Association.
