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Interactive Dialogue, 45th session, Human Rights Council

Statement by Mr. Chris Kwaja
Chairperson-Rapporteur
17 September 2020 (delivered virtually

Madame President,
Excellencies,
Ladies and Gentleman,

I am honoured to address the Human Rights Council as the Chairperson- Rapporteur of the Working Group on the use of mercenaries as a means of violating human rights and impeding the right of peoples to self-determination.

Over the past year, the Working Group has continued to actively pursue the implementation of its mandate. While two of our three annual sessions in the past year were shortened and convened online due to the global pandemic, we have continued engaging with Member States, international and non-governmental organizations and other relevant interlocutors, and convened expert consultations and panel events. I thank all those who met with us and contributed to our work.

We have received and taken action on specific allegations of violations of international humanitarian law and violations and abuses of international human rights law arising from the activities of mercenaries and private military and security companies with concerned governments and companies. Frequently, we have done so in collaboration with other Special Procedures mandate holders.

Today, I am pleased to present our thematic report, and the findings of the Working Group’s official visit to Switzerland.

Madame President,

This year, the thematic report of the Working Group highlights the dramatic impacts on the protection of the human rights of all migrants caused by the increased and wide-ranging use of private military and security services to support State policies on immigration and border management. The four main categories of services covered in the report are: (1) the provision of research and technical expertise; (2) border security technologies and monitoring services; (3) procedures and conditions of immigration detention, returns and removals; and (4) the implementation of “externalization” policies.

In many cases, companies are directly responsible for human rights abuses of migrants, including refugees and asylum seekers, notably in situations of deprivation of liberty. In other cases, they are complicit in human rights violations and abuse caused by other actors, such as immigration and border authorities. This is primarily the case through the provision of  border security technologies and co-framing of migration as a security threat for which the “solution” is security and technological tools, which only they can provide.

In light of increasing reports of violations and abuses of the rights of migrants, the Working Group calls for a fundamental evaluation of the way migration is governed. In particular, privatization and securitization practices must be effectively assessed to ensure they do not take precedence over human rights and humanitarian principles.

Excellencies,

It is ultimately States that have a duty to respect, promote and fulfil the human rights of all migrants within their jurisdiction or effective control, including extraterritorially, where applicable. These obligations remain regardless of whether States have outsourced certain immigration detention and border control functions to a private actor. States must take urgent measures to fulfil these obligations, including by strengthening the legal and regulatory frameworks applicable to  private military and security services. Particular attention must be paid to companies to whom they have contracted inherent State functions, such as detention and border management, as well as companies whose activities take place in environments with an increased risk of serious human rights violations and abuses. States should also use all tools at their disposal to enforce human rights standards, including through licensing or authorization regimes and contracts.

States should also undertake regular and comprehensive reviews of advanced technologies purchased from and maintained by companies for immigration and border management, in order to assess their human rights compliance. They should also publicly disclose detailed and appropriate levels of information on immigration detention and border control functions outsourced to business entities and strengthen national oversight mechanisms. Regarding the collection, storage and use of biometric and other data on migrants, States must require companies to ensure that the systems they provide and manage are regulated by law and comply with international standards and best practice on data protection and privacy.

In its report, the Working Group reiterates its call on States to terminate the practice of outsourcing the overall operation of immigration detention facilities to private military and security companies, and to favour the use of alternatives to detention, in accordance with relevant international standards.

Furthermore, the Working Group stresses the need for States to introduce and strengthen measures to ensure effective oversight as well as accountability of companies and their personnel for human rights violations and abuses against migrants caused directly or indirectly by their business activities.

The Working Group also calls on companies operating in this sector to exercise heightened human rights due diligence to avoid causing, contributing or becoming directly linked to adverse human rights impacts. It urges companies to be more transparent by publicly disclosing accessible, clear and non-ambiguous information with regard to their contracts and operations, as well as adverse human rights impacts by their operations. They should also provide or cooperate to remedy violations and abuses through legitimate processes, including cooperating with with judicial mechanisms where appropriate.

Madame President,

Let me now turn to the country visit presented to this Council.

A delegation of the Working Group visited Switzerland from 13 to 17 May 2019. I would like to sincerely thank the Swiss authorities for the excellent cooperation extended to the Working Group in the frame of this visit.

The Working Group commends Switzerland on the exceptional leadership and commitment in steering international initiatives aimed at raising standards within the industry and increasing levels of awareness about the human rights responsibilities of private military and security companies.. We call on the authorities to maintain their commitment and to invest greater resources and efforts to ensure tangible results of these initiatives on the ground.

Building on its role in international fora, Switzerland modelled strong regulatory practices by enacting national legislation in 2013 in the form of the Federal Act on Private Security Services Provided Abroad. The Working Group commends Switzerland on the adoption of this legislation and welcomes the exemplary efforts undertaken for its practical implementation. Looking ahead, the Working Group encourages Switzerland to maintain the wide scope of application of the Federal Act, and to strengthen related monitoring of compliance.

Compared to the framework regulating private security services provided abroad, the Working Group found that the regulatory framework governing private military and security companies operating domestically is lagging behind. The Working Group recognizes that no serious human rights abuses by such companies have been brought to its attention. Nevertheless, considering the sensitive nature of some of the tasks performed by private security providers, the Working Group is concerned about the lack of a consistent legal framework for their operations, especially in relation to vetting, training and oversight. The Working Group therefore calls on the authorities to adopt a unified regulatory framework to set minimum standards for private security companies applicable in all cantons of the Confederation.

With regard to mercenaries and mercenary-related actors, the Working Group recognises that Switzerland has found ways to curtail their activities and has a legal framework that appears to be sufficient to deal with the handful of cases that are brought to the attention of judicial authorities.

To conclude, the Working Group strongly supports Switzerland in continuing its leading role in different international fora pertinent to private military and security companies, including in discussions on the development of an international regulatory framework, as well as encouraging it to develop effective domestic regulation.

Ladies and Gentlemen,
Excellencies,
Madame President,

I thank you for your attention and I look forward to engaging in a constructive dialogue.

Thank you.