A/HRC/36/47
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 judiciary 97 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
94
95
96
97
98
99
100
101
Act CXXXIII of 2005, art. 2.
The laws of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and Panama.
In Malaysia and the United Arab Emirates.
In Malaysia and Pakistan.
Costa Rica.
El Salvador and Mexico.
Guatemala.
Federal Activities Inventory Reform Act of 1998, sect. 5.2, and Office of Management and Budget
circular A-76, Inventory Process B.1.a.
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.)
11
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