A/HRC/21/43
2.
Regulation of activities of private military and security companies
55.
Both the Swiss draft law and the South African legislation embrace a regulatory
approach to private military and security companies. The former mandates the registration
and approval of private military and security company activities abroad. The latter does not
require registration, but does require authorization for certain types of activities abroad.
56.
While none of the legislation considered includes specific vetting and training
standards for private military and security companies, Government authorities have been
required to undertake additional steps to ensure the qualifications of the individuals who
and companies that they seek to hire. Generally, legislation on private military and security
companies leaves it to agency-level bodies to develop vetting and training requirements.
This is the approach taken in the Swiss draft law. In the United States, the Secretary of
Defense is required, under the Ike Skelton National Defense Authorization Act for Fiscal
Year 2011, to develop specific requirements for defence contractors, such as a third-party
certification process and weapons certification for private military and security company
employees who carry weapons.
57.
The experience of South Africa in implementing a licensing scheme demonstrates
some of the challenges that States face. The body charged with authorizing private military
and security company activities abroad is a Cabinet-level body. While charging such a
high-level body with this task may serve to ensure utmost care in authorizing the activities
of private military and security companies, it has also resulted in administrative challenges.
The South African legislation does not specify a time frame within which the Committee
must make its determinations and there is little public information about its processes. For
example, the Committee is required to report to Parliament on its own activities, including
applications received and the status of authorizations, but this requirement has not been
regularly met. It also remains unclear whether the Committee maintains the required
19
register of authorizations and approvals issued by the Minister of Defence. This may have
had the unintended effect of driving the private military and security company industry
underground. During the Working Group’s trip to South Africa, several companies reported
that they often chose not to seek authorization for their activities because they possessed
20
little confidence that the Committee would handle applications fairly and promptly.
58.
None of the legislation reviewed included systematic monitoring and reporting by
private military and security companies to ensure compliance with national laws and
international human rights norms. It is therefore unclear whether, once a private military
and security company is granted a licence to conduct certain operations, its activities under
that contract are in any way monitored by the licensing authorities. The Swiss draft law
does not require regular or periodic reporting on the activities of private military and
security companies, nor does it require such companies to report allegations of crimes or
human rights violations to the authorities. In South Africa, once a company has received
authorization to offer its services abroad, the law does not provide for monitoring of its
activities by the Committee or any other body. Companies are not required to report on
their activities or undergo field auditing.
3.
Scope of legislation
59.
In defining the scope of regulation of private military and security companies, the
States analysed have used various approaches, generally focusing on areas of armed
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A/HRC/18/32/Add.3, paras. 27-29.
Ibid., para. 30.
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