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”.