A/HRC/42/42
law. According to common article 3, it applies to all actors on the territory of the State
affected by armed conflict, including State and non-State actors, such as individuals and
corporations. International humanitarian law is recognized to be the lex specialis, prevailing
over other sets of rules, including international human rights law when the two branches of
law are in contradiction. A private military or security company and its personnel providing
services to an extractive company in a situation of armed conflict is therefore bound by the
rules set out under international humanitarian law, and should respect human rights. The
status of private military and security personnel under international humanitarian law is
determined according to the nature and circumstances of the functions they perform, in
particular whether they participate directly in hostilities.
B.
Legal instruments and tools at the national and company levels
39.
Extractive companies, like other business entities, are subject to national law in the
country in which they operate. Nonetheless, in the majority of States studied by the Working
Group, national laws and regulations governing private military and security companies
(where such laws and regulations exist), contain inadequate human rights safeguards (see
A/HRC/36/47). In addition, very few States have national legislation that provides for
corporate criminal liability.
40.
Even in the absence of such legislation, States have other means to strengthen human
rights protections in the context of security arrangements in the extractive industry and to
render the provision of security services to the extractive industry transparent and thereby
more accountable. The following instruments provide opportunities to clarify the respective
roles and responsibilities of different security actors and to regulate the activities of private
security providers:
(a)
Concession agreements (State – extractive companies): States can determine
specific conditions under which a concession to extract may be granted, including human
rights standards, the delineation of security roles and responsibilities between public security
forces and private security personnel, mechanisms for security actors operating at the
extractive site to engage and consult with local communities, and criteria for the engagement
of private military and security companies, such as only hiring those that are registered in
accordance with relevant national regulations.
(b)
Regulation, licencing and certification of private security services (State –
private military and security companies): States have the authority to define, monitor and
sanction non-compliance with rules and requirements of private military and security
companies, including building in adequate human rights safeguards. In addition, States may
set up independent mechanisms to monitor the actions of such companies and vet their
personnel operating in the extractive sector.
(c)
Memoranda of understanding and similar agreements (State – extractive
company): Memoranda of understanding and similar agreements on security arrangements
between the State and the extractive company also provide an opportunity to clearly and
publicly specify the roles and responsibilities of public and private security personnel in
extractive operations and the terms under which they operate, and also the human rights
standards and obligations of all actors providing security services, including private military
and security companies.
(d)
In-house security (extractive company – employee relationship): Extractive
companies have control over recruitment processes, policies, regulations and training, and
disciplinary procedures applicable to their own security staff. They also have the authority to
make these instruments known to the public and to include human rights standards
throughout (for example, by means of thorough vetting of prospective staff, specific human
rights policies and training).
(e)
Procurement procedures and private contracts (extractive company – private
military and security company): Extractive companies determine the terms and conditions of
calls for tenders and contracts with private military and security companies. Transparency
with regard to privately contracted security personnel could be helpful in improving relations
11
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