A/HRC/21/43
44.
Separately, “sense of Congress” provisions state that private security contractors
should not be authorized to perform inherently governmental functions in an area of combat
operations and that interrogation is an inherently governmental function that “cannot
appropriately be transferred to private-sector contractors”. The Secretary of Defense is
instructed to issue policy guidance requiring the establishment of a third-party certification
process for private military and security companies as a condition for selection for defence
contracts for private security functions and requiring private military and security company
employees that carry weapons to obtain basic weapons certification from a reputable
certifying body. Intelligence activities are excluded from these requirements.
45.
Although the national defence authorization acts require some Government
authorities to promulgate the above-described regulations, the regulations themselves are
beyond the scope of the present analysis.
3.
Switzerland
46.
As mentioned above, the Swiss draft law on the provision of private security
17
services abroad is one of the most recent efforts to comprehensively regulate private
military and security companies. Just as the South African legislation, the Swiss draft law
follows two tracks. First, it prohibits certain activities, including direct participation in
hostilities in an armed conflict,18 the hiring, training and provision of security personnel for
direct participation in hostilities, and the provision of security services associated with
serious infringement of human rights.
47.
Second, it regulates private companies providing security services. Such services are
defined to include a range of activities from protection tasks to guarding prisoners to
operational or logistical support for armed or security forces and intelligence activities.
48.
In addition to applying to natural persons, legal persons and partnerships, the Swiss
draft law covers private security companies operating in Switzerland and companies that
are registered in Switzerland and control security companies operating abroad. Any person
or company seeking to carry out security services abroad is required to notify the
Government, which will decide whether to prohibit or approve the activity, or to undertake
further investigation. Draft article 12 provides a list of activities, such as those that take
place in armed conflict, which may be contrary to the aims of the law and which the
competent authority can consider when deciding whether to prohibit an activity. The Swiss
draft law establishes clear deadlines for notification to the applicant at each stage in the
process. It also requires private security companies to “observe the provisions” of the
International Code of Conduct of 9 November 2010.
49.
The Swiss federal authorities must follow certain guidelines to employ private
security companies abroad. They may use private security companies for the protection of
persons; guarding and surveillance of real estate; protection and transfer of tangible and
intangible assets and data protection and handling. Before using private security services,
the federal authorities must ensure that the company satisfies requirements concerning the
recruitment, training and oversight of its personnel; demonstrates a clean human rights
record; and provides sufficient internal controls to ensure that its personnel will observe the
rules of conduct and be penalized for failure to do so. The federal authorities must also
17
18
12
Available from
www.bfm.admin.ch/content/dam/data/sicherheit/gesetzgebung/sicherheitsfirmen/vorentw-f.pdf. The
Working Group based its comments on an unofficial English translation of the draft law.
Draft article 4 (d) of the Swiss draft law defines direct participation in hostilities as “direct
participation in hostilities developing within the scope of an armed conflict abroad within the
meaning of the Geneva Conventions and Additional Protocols I and II”.
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