A/HRC/36/47
States’ national legislation expressly provides for penal and civil sanctions for violations
committed by private military and security companies, and even fewer States’ national
legislation contains provisions on any forms of remedy for victims. Without a proper and
standardized monitoring and accountability mechanism for the activities of private military
and security companies and an effective oversight, reporting, sanctioning and remedy
system related to violations of the law, including human rights law, there is the risk that
private military and security companies and their personnel in the countries of origin,
registration and operation are not held accountable and liable for the human rights
violations they commit during their operations.
57.
The Working Group found great diversity and ambiguity in the description of
permitted and prohibited activities, a lack of a clear dividing line between the functions of
private military and security companies and law enforcement authorities, and a lack of rules
prohibiting direct participation in hostilities in armed conflict — an especially significant
concern considering the growing role of private military and security companies in armed
conflicts, post-conflict situations and low-intensity armed conflict situations. This gives rise
to challenges of enforcement, accountability and the availability of remedies to victims of
violations.
58.
The private military and security industry often operates in complex environments
characterized by weakened rule of law. The Working Group believes that accountability
under such conditions requires the increased exercise of extraterritorial and universal
jurisdiction.
59.
The Working Group is also of the view that regulation of non-State actors, such as
private security providers, requires a multidimensional approach that includes improved
international norms and standards, effective national regulation and enforcement, and
industry-led efforts to improve compliance with human rights standards. The Working
Group has been involved in various efforts at each of these levels, and in the present report
focuses on domestic legislation. This global study of national legislation shows that, despite
commendable efforts, norms and standards at the national level leave many gaps in the
regulation of private military and security companies and in regard to their accountability in
the face of human rights violations.
60.
Given the regulatory gaps that have been identified, the Working Group is pleased at
the development of voluntary initiatives such as the Montreux Document Forum and the
International Code of Conduct for Private Security Service Providers, which have clearly
led to improved standards across the industry. It is also encouraging to see that many
companies have signed up to the International Code of Conduct for Private Security Service
Providers’ Association since its establishment and that the Montreux Document is also
garnering a growing number of signatories. These are important complementary initiatives
for the strengthening of regulation on private military and security companies.
61.
However, an assessment of self-regulatory and voluntary initiatives such as those
mentioned, as well as this global study on national legislation, show that self-regulation and
voluntary initiatives cannot in themselves ensure comprehensive accountability for human
rights violations and provide effective remedies for victims. Only clear legal norms backed
by State enforcement can do this. The Working Group supports the incorporation of these
norms into an international legally binding instrument rather than relying on self-regulation
and voluntary initiatives that are non-binding.
V. Conclusions and recommendations
62.
The Working Group’s global study indicates that States’ approach to
regulation of an increasingly transnational industry is patchy and inconsistent. The
ever-increasing privatization of security and military functions and the general
growth of the private military and security industry across international boundaries
raise serious questions about the legitimacy of the private use of force and the capacity
of States to control their territory effectively and to provide strong accountability
mechanisms and effective remedies to victims of human rights violations committed
by private military and security companies. The Working Group is concerned that
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