Report on national laws and regulations relating to PMSCs of selected countries in Central America and the Caribbean, South America and Europe (Part III of a Global Study)
Working Group on the use of mercenaries
To the 30th session of the Human Rights Council
Twice a year, the Working Group on the use of mercenaries issues calls for inputs to inform thematic studies to be presented at the Human Rights Council in its September session and at the General Assembly in October.
Between 2013 and 2016, the Working Group conducted a comprehensive Global Study of national legislation and regulations with a view to study and identify trends in national regulatory frameworks relevant to private military and security companies (PMSCs) in 60 States from all the regions of the world. The methodology for the study included a questionnaire sent to States in 2012. Over 30 States responded. Additional research was conducted on States’ laws and regulations.
The results of this comprehensive study and analysis of national legislation, which provides a basis of research for a variety of stakeholders, has informed the production of six reports on this issue presented to the General Assembly and the Human Rights Council over three years.
The report presents the findings of the Working Group’s ongoing global study of national laws and regulations relating to private military and security companies.
The report focuses on the laws and regulations of eight countries in Central America and the Caribbean (Costa Rica, Cuba, El Salvador, Guatemala, Honduras, Mexico, Nicaragua and Panama), eight countries in South America (Argentina, Bolivia (Plurinational State of), Brazil, Chile, Colombia, Ecuador, Peru and Uruguay) and four countries in Europe (France, Hungary, Switzerland and the United Kingdom of Great Britain and Northern Ireland). While there are common elements in the laws of these countries, their regulatory approach to private military and security companies varies.
The research revealed that while all analyzed countries have legislation regulating PMSCs, each country approaches the privatization of the security industry differently, which results in patchy and inconsistent regulation. The different approaches and regulatory gaps demonstrated in the study may result in a serious undermining of the rule of law and the accountability of PMSCs personnel for violations of the law. Furthermore, regulatory gaps create potential risks to various fundamental human rights, such as the right to security, the right to life, the prohibition of the arbitrary deprivation of liberty, the prohibition of torture, cruel, inhuman or degrading treatment and the right of victims to effective remedies.
Few countries have national legislation that covers the activities of PMSCs abroad. Considering the transnational nature of private security and military services, the insufficient regulation regarding the scope of the analyzed legislation seriously weakens the rule of law. In contexts in which borders between countries are porous, it is necessary to fill the gaps and promote regional and sub-regional agreements for the regulation of PMSCs, to effectively protect the rule of law, human rights and exercise of the right of peoples to self-determination. Another important gap is that these regulations do not directly address military-like activities or PMSCs.
The analysis also indicates that there are serious regulatory gaps concerning the illegal acquisition of weapons and trafficking in arms by PMSCs personnel and their consequences, and there are divergent approaches regarding the use of force and firearms.
In general, across regions, legislation lacks references to company or personnel compliance with the standards of international human rights law and humanitarian law, penal accountability and civil liability of individuals and corporate actors, as well as effective remedies to victims. The weaknesses of the systems of selection and background checking, as well as the training of operational personnel, make more difficult for them a good understanding and internalization of legal norms and principles.
In its recommendations, the Working Group reiterates the need to effectively regulate the activities of PMSCs and invites all Member States to facilitate its study, which aims to guide them in exercising effective oversight of the activities of such companies.
On 1 December 2015, the Working Group organized a panel event in Geneva on "the regulation of private military and security companies", as another element of its Global study on national regulations.
The overall objective of the event was to discuss several questions, including: i) are PMSCs above the law? ii) how to ensure that PMSCs respect human rights? iii) after "Blackwater", how to ensure that no loopholes are allowed for PMSCs? iv) as warfare is increasingly privatized, how to strengthen regulations, particularly for human rights? and v) what access to remedy is available for victims of PMSCs abuses?
Panel 1: PMSCs regulation at the national level
Panel 2: National experiences of PMSCs regulations