A/HRC/32/39
forthcoming complaints process.43 Whether or not the complaints procedure of the
International Code of Conduct for Private Security Service Providers’ Association will be
able to provide effective access to remedies for victims of human rights abuse by private
security providers remains to be seen.
3.
Accountability under domestic law
112. Human rights abuses perpetrated by private security personnel can be redressed
under criminal law and, in some instances, as part of tort law or the law of delict. That can
raise questions regarding the legal personality of companies and the different doctrines
applied when establishing corporate liability. Some States, such as the United Kingdom,
have explicitly codified corporate criminal liability, while others rely on general tort law
and the law of delict to institute civil claims.
113. Nothing should detract from the pursuit of personal criminal liability of the
individual perpetrator of the abuse. However, vice versa, the fact that sufficient evidence
cannot be gathered to prove a criminal act does not mean that an abuse has not occurred.
114. In certain circumstances the concept of vicarious criminal liability can be helpful. A
corporation can be criminally responsible for conduct, distinct from the owners, agents or
employees of the corporation. The application of vicarious liability transfers the criminal
responsibility for an offence from an agent or employee to the corporation itself, while the
agent or employee remains responsible for the crime committed. Essential elements of
corporate criminal liability include a special relationship between the agent or employee
and the corporation (namely, employment) and the requirement that the crime must have
been committed in the performance of duties in terms of that relationship. Attention must
also be given to considerations of the liability of parent companies for abuses committed by
their subsidiaries.44
115. It should be noted that, given the inherent risks of abuse of rights associated with
security work, close attention should be paid to the trigger of liability concerned. It can be
argued that private security providers should be held to a modified standard of strict
liability as might be expected from a company, for example, handling hazardous waste.
Laws should not grant a company the right to exculpate itself from intentional or grossly
negligent excessive force resulting in death or serious injury, even if the company can show
that the employee concerned was appropriately selected and trained. Without that standard
of liability, victims will often have no effective recourse, as the individual perpetrator is
often devoid of means.
116. Since many private security providers operate on a global level, the extraterritorial
applicability of human rights law, and specifically human rights treaties, is crucial to the
regulation of the sector. In the context of business, extraterritorial jurisdiction has in one
way or another made its way into a number of policy domains that include anti-corruption,
securities regulation, environmental protection and more general civil and criminal
jurisdictions, but not in relation to business and human rights (see A/HRC/14/27, para.
46).45 However, international law does not prevent States from extending their jurisdiction
43
44
45
The processes put in place for the reporting, monitoring and assessment of members’ performance in
accordance with the code of conduct were established under article 12 of the Association.
See G. Skinner, “Parent company accountability: ensuring justice for human rights violations”
(International Corporate Accountability Roundtable, November 2015). Available from
http://icar.ngo/wp-content/uploads/2015/06/PCAP-Report-2015.pdf.
See J. Zerk, “Extraterritorial jurisdiction: lessons for the business and human rights sphere from six
regulatory areas”, Corporate Social Responsibility Initiative Working Paper No. 59 (Cambridge, MA,
19
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