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Introduction

Since the early 1990s, the world has seen a shift in the way that security is provided by state actors. Many traditional public security functions have been contracted out to private military and security companies (PMSCs) within domestic markets and also internationally, where the increased presence of private contractors in armed conflicts has brought them closer to military operations. This shift has created an industry which is estimated to be worth US$244 billion per year.

Trends indicate that the use of PMSCs is increasing with States, business actors and other organisations, (including humanitarian organisations) contracting private military and security services. PMSCs today also operate in a variety of contexts. They may provide security in other countries, in conflict zones, or in complex and/or high-risk non-conflict zones. But as the outsourcing of security services and logistics continues (e.g. prisoner transport, protection of persons, guarding or surveillance of goods and properties, cash transfer, guarding oil and gas or mining installations, event security, monitoring of offenders or close protection), they also operate increasingly at the domestic level.

Furthermore, some PMSCs have attracted increasing international attention due to allegations of misconduct or human rights abuses and violations of international humanitarian law (IHL) by the company or its personnel. In all these circumstances, there is potential for misconduct and significant adverse human rights impacts by PMSCs. Further, at a national level, many States lack adequate national legal frameworks to address such issues. There is an urgent need for improvements to national regulatory frameworks to ensure PMSCs promote an internal human rights culture and, ultimately, respect human rights principles.

  This Guidance Tool features acronyms and terminology which are expanded and defined in the PDF version.

Objectives of this Guidance Tool

The aims of this Guidance Tool are simple and involve two key objectives:


01.

To raise awareness of existing national legislation, policies, and best practices;

02.

To provide guidance for parliamentarians to develop or update national legislation related to PMSCs, in line with international legal obligations and taking into account good practices.

How to use this Guidance Tool

This Guidance Tool is comprised of 7 distinct Chapters structured around key challenges for parliamentarians and lawmakers in regulating PMSCs. It proposes recommended content that lawmakers can include into national legislative frameworks. This aims to ensure that legislation is comprehensive and reflects international good practice. These Chapters are as follows:

 

 

In order to offer practical guidance to parliamentarians and lawmakers, this Tool gathers common challenges that can arise when States are developing legislative frameworks. These challenges are then analyzed in detail, followed by concrete recommendations and examples of good practice. The good practices are not meant to be prescriptive and it is up to the user of the Tool to evaluate whether they are feasible and appropriate to the local context and specific situation.

There are two ways to use this Tool:

  1. If parliamentarians and lawmakers are considering developing new comprehensive legislation, it is advised to move chronologically throughout each Chapter in order from 1 to 7 to assist in the drafting process.
  2. When updating national legislation, or when addressing specific issues, users of the Guidance Tool can look to the list of challenges, identify the specific challenges that need to be addressed, and access the relevant Chapters. See below for the complete list of challenges.

 

How to Use this Guidance Tool

About this Guidance Tool

  • Background

    As a response to the growing concerns related to lack of regulation of the private security industry, Switzerland and the International Committee of the Red Cross (ICRC) jointly launched in 2006 an international process to create the Montreux Document.

    The Montreux Document recalls the existing international legal obligations of States in relation to PMSCs in situations of armed conflict. Furthermore, it lists good practices designed to help States take national measures to implement these obligations and encourages national legislators and policymakers to review whether their domestic arrangements for PMSCs conform to international obligations and best practice in this area. This guidance tool draws heavily on the guidance of the Montreux Document and on other leading international frameworks, and sets out challenges faced by States to adequately regulate PMSC activities, proposing that parliamentarians and lawmakers should consider legislating in this area at the national level. This Guidance Tool offers a blueprint for legislators to create policies and laws which are in line with internationally recognised good practices.

  • Who is the Audience for this Guidance Tool?

    This Guidance Tool is aimed at parliamentarians and law and policymakers who undertake to develop new or to update existing laws for national regulation of the private military and security industry.

    This tool can also be helpful as a reference guide for companies who are looking to inform their procurement practices based on existing international obligations and using internationally recognised good practice. The living examples of national good practices presented throughout the Tool can also be helpful in raising awareness for civil society carrying out monitoring and oversight of companies’ activities, to help better understand benchmarks for ethical PMSC operations in the field.

  • Why is this Important for Parliamentarians and Lawmakers?

    Parliamentarians and lawmakers are in the unique position to ensure that democratic oversight is established and maintained to achieve transparency and accountability within this burgeoning sector of the security industry.

    States are obliged to ensure that security actors, including PMSCs, do not breach fundamental human rights or commit abuses of international human rights law (IHRL) in the course of their work. A vital starting point for all States to ensure PMSCs are held accountable for their activities is to develop and implement an effective national legislative framework. This Tool aims to assist parliamentarians and lawmakers to develop or update existing national laws in line with international obligations and good practices.

What are the Key Challenges to the Regulation of the PMSC Industry?

As the security landscape continues to change on a global scale, the requirements for effective regulation have also shifted. This raises questions for States, including: which types of military or security functions should be outsourced to private companies? How does the State monitor the activities of PMSCs and how do States respond to abuses of human rights and violations of IHL by PMSCs where they do occur? Who should be monitoring PMSCs and their personnel? How do States deal with PMSCs when human rights abuses and IHL violations do occur and what mechanisms for effective remedies are developed to help victims?

Furthermore, most national laws fail to adequately ensure that legislation extends to PMSCs registered or incorporated in the country but operating abroad. Given that transnational operations of PMSCs are on the rise, this lack of clarity regarding the applicability of national legislation over foreign activities of PMSCs could create accountability vacuums. This can be further complicated when companies are requested to carry out functions in situations of armed conflict which increase the likelihood that their personnel become involved in direct participation in hostilities. IHL and IHRL, as well as many effective laws, norms and standards already exist to guide States in navigating these difficult questions. However, existing national laws are not always clear on how a State’s international human rights obligations apply to and govern the operations of PMSCs. This can contribute to a higher risk of human rights abuses and IHL violations, in particular where limited capacity or other obstacles impede or prevent accountability of companies.

List of Challenges

1. General Provisions Contained in Legislation

Challenge 1.1 The stated objective of PMSC legislation often lacks an explicit requirement for companies and their personnel to respect human rights and IHL ...more

Challenge 1.2 Unclear or inadequate definition of the extraterritorial application of legislation can result in a lack of accountability for PMSCs’ activities abroad ...more

Challenge 1.3 The lack of a universally accepted definition of private military and security companies can complicate the adoption of legislation ...more

2. Permitted and Prohibited Activities

Challenge 2.1 Overly strict or excessively vague definitions of permitted and prohibited activities of PMSCs can undermine the effectiveness of the legislation ...more

Challenge 2.2 The responsibility of States to uphold their obligations and responsibilities under international law is often unclear in legislation. States retain this responsibility and in some cases can be held responsible for violations by PMSCs or their personnel ...more

Challenge 2.3 In situations of armed conflict, the difference between the direct participation in hostilities by PMSC personnel and other activities may be difficult to determine. Some services provided by PMSCs may amount to direct participation in hostilities by personnel and thereby violate IHL or domestic law ...more

Challenge 2.4 The distinction between mercenaries and PMSC personnel is not always well understood ...more

Challenge 2.5 In some situations, the distinction between the functions of PMSCs and those of the police and/or the armed forces can be blurred and can create confusion over division of roles and responsibilities, potentially leading to the inappropriate use of coercive force by PMSCs ...more

3. Authority Responsible for the PMSC Industry

Challenge 3.1 Monitoring mechanisms are often weak, not carried out in a systematic manner or nonexistent ...more

Challenge 3.2 The absence of a specific national regulatory authority may undermine compliance with relevant law ...more

Challenge 3.3 States may not always have the capacity and resources available to carry out the increasingly complex range of activities required for the effective regulation and monitoring of PMSCs ...more

Challenge 3.4 If a designated authority exists, the personnel of the authority may not have adequate skills, training and/or resources to carry out their functions effectively ...more

4. Authorisation, Licensing, and Registration of PMSCs

Challenge 4.1 Effective oversight of PMSCs is a complex task that should be supported by a comprehensive system; this begins with requiring PMSCs to obtain authorisation/licenses ...more

Challenge 4.2 Unclear and/or excessively low criteria for the granting of authorisations/licenses to PMSCs can lead to human rights abuses and violations of IHL ...more

Challenge 4.3 Lack of clear conditions for the renewal, suspension or revocation of an authorisation/license can result in a lack of accountability ...more

Challenge 4.4 Lack of a comprehensive centralized registry containing records of PMSCs and their personnel can compromise the transparency of the sector and impede effective monitoring and oversight ...more

5. Vetting, Selection, and Contracting of PMSCs

Challenge 5.1 When States contract PMSCs for particular services, there is often no systematic process for vetting, selection, and contracts. Where such a process is in place, the standards and criteria can be inadequate ...more

Challenge 5.2 The subcontracting by a PMSC of some of its activities can undermine effective State oversight ...more

Challenge 5.3 Contracts often lack comprehensive clauses requiring compliance with IHL and human rights standards ...more

Challenge 5.4 Sanctions for breach of contract may not be included in contracts. Where they do exist, sanctions may be unclear or inadequately enforced ...more

6. Obligations of PMSCs and Their Personnel

Challenge 6.1 PMSC managers and personnel may lack adequate training and practical knowledge of the application of IHL and human rights ...more

Challenge 6.2 PMSCs managers and personnel may lack knowledge of the cultures, traditions and values of the local communities in which they are operating ...more

Challenge 6.3 PMSCs may not always have adequate equipment, or may carry inappropriate weapons and firearms ...more

Challenge 6.4 PMSCs personnel may not always have adequate training in the safe and appropriate use of weapons and firearms which they are permitted to carry in the course of their duties ...more

Challenge 6.5 PMSCs may not always acquire their weapons and firearms in an appropriate manner, or may not have the capacity to store them in conditions corresponding to adequate security standards ...more

Challenge 6.6 If a PMSC does not provide safe and adequate working conditions, this will negatively impact the performance of its employees/personnel ...more

Challenge 6.7 PMSCs do not always adopt internal company policies reflecting commitment to national standards, IHL and human rights ...more

7. Accountability and Effective Remedies to Victims

Challenge 7.1 In complex environments or situations of weak governance, PMSCs may not be held accountable for violating national laws and standards. Sanctions for violations of international law may not exist or are often not enforced ...more

Challenge 7.2 Criminal and non-criminal corporate liability may not be available ...more

Challenge 7.3 The transnational character of some PMSCs or their activities can create accountability gaps ...more

Challenge 7.4 Insufficient cooperation between States can contribute to lack of accountability for PMSCs operating abroad ...more

Challenge 7.5 National legislation rarely establishes mechanisms that ensure effective remedies for victims ...more

Download the complete Guidance Tool as a PDF document.

About DCAF

The Geneva Centre for the Democratic Control of Armed Forces (DCAF) is an international foundation whose mission is to assist the international community in pursuing good governance and reform of the security sector. The Centre provides in-country advisory support and practical assistance programmes, develops and promotes norms and standards, conducts tailored policy research and identifies good practices and recommendations to promote democratic security sector governance.