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.+ Read more
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]