Jelena Aparac, Chair of the Working Group on the use of mercenaries
to the 48th session of the Human Rights Council
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 we continued to hold our session online and in a shortened format due to the global pandemic, we have intensified our engagement with Member States, international and non-governmental organizations and other relevant interlocutors during the sessions and in the inter-sessional period. For instance, we convened two expert consultations to exchange on the topics of our thematic reports to the Council and to the General Assembly and contributed to a number of online debates. I take this opportunity to thank all those who met with us and contributed to our work.
We also continued to receive and take 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 annual thematic report and to engage with the Council in the context of this interactive dialogue.
This year, the thematic report of the Working Group highlights the role of private military and security companies in humanitarian action.
An increasing number of private military and security companies are operating in the humanitarian space, which exacerbates the risk of violations of human rights and international humanitarian law, and undermines humanitarian principles.
The growing reliance on private military and security companies by humanitarian actors has come with significant challenges with regards to protection of civilians and the guarantee and respect of human rights and international humanitarian law. Most importantly, the role of these private companies in humanitarian action, and the commercialization of humanitarian aid, raises concerns over their impacts on the humanitarian principles of impartiality, neutrality and operational independence.
Some private military and security providers work for several clients simultaneously. This may further compromise humanitarian operations and the neutrality of their mandates.
The Working Group is concerned about the increasing involvement of private military and security providers in humanitarian action, given that it may render the adequacy of security as a state function and a public good, reserving security only for those who can afford it.
The Working Group finds the growing diversification of the markets of PMSCs alarming given that they increasingly operate in close proximity to vulnerable populations. This diversification of services renders regulation and oversight over them even more critical.
The Working Group has, for instance, dealt extensively with the use of PMSCs by the UN in its 2014 report to the General Assembly. It regrets that the challenges associated with the use of these companies remain, and their use and interaction by the UN in its operations continues exacerbating human rights risks for vulnerable populations.
In addition, in recent years, private military and security companies have also been engaged in health crisis response such as Ebola or Covid, exacerbating human rights concerns related to the health sector and biosecurity.
It is; thus, necessary to critically reflect on the types of situations and spaces in which PMSCs operate, and the array of human rights and international humanitarian law violations that can and do arise.
There are numerous allegations against private military and security companies for indiscriminate and excessive use of force against civilians, resulting in many civilian deaths. Such incidents have also occurred when these personnel have been engaged in humanitarian-type support services, including when guarding convoys, humanitarian aid personnel and premises. When armed private security personnel operated closely alongside military personnel, such as state armies or UN peace operations, and they engage in the use of force, this can compromise the principle of distinction between civilian and military persons and objects, creating confusion about legitimate targets.
Furthermore, the report analyses the fundamental lack of transparency around these operations, most notably in the relationships between clients and service providers. It looks into the absence of effective oversight, accountability and remedies for victims of human rights and international humanitarian law violations, resulting directly or indirectly from private military and security companies’ operations.
Such reflections should be taken into consideration in addressing gaps in the regulatory framework governing conduct of PMSCs. The Working Group calls on States to regulate, as a minimum, critical issues such as: prevention of human rights and international humanitarian law abuses; the scope of permissible activities of private military and security companies; accountability; and remedies for victims of such abuses.
Robust state regulation and oversight over private military and security companies through domestic legislation is also essential. States can establish independent mechanisms to monitor companies and to ensure they are properly vetting personnel. The role of states, is critical in the ongoing process of redefining the ‘security industry of humanitarian action’.
States should also create mechanisms for sanctioning non-compliance with the laws applicable to private military and security companies, including human rights standards. Increased transparency around private military and security companies’ usage, and effective regulation and oversight, would place increased pressure on these private companies to ensure that both they and their personnel adhere to human rights and international humanitarian law standards. This would also be in line with the multitude of relevant guidelines and codes that have been developed to guide them over recent years.
Ladies and Gentlemen,
Going forward, the Working Group encourages a multi-dimensional response to the regulation of private military and security companies. Only a comprehensive approach adopted at state and international levels can effectively regulate these private companies and ensure accountability.
In the context of humanitarian action this requires further assessment on the use of private military and security companies by humanitarian actors, the UN peacekeeping and other actors conducting operations in humanitarian contexts, in order to develop empirical evidence for evaluating the human rights implications of such actions.
There is also a need for further efforts by the humanitarian sector themselves to self-regulate. Humanitarian actors contracting private military and security companies need to ensure effective human rights due diligence in procuring these services, and this should be integrated into procurement guidelines. This necessitates background screening of these companies, their ownership, any prior allegations of violations of human rights or international humanitarian law against them, and the company’s human rights policies, and training and personnel vetting procedures. Similarly, companies should ensure that they have adequate human rights due diligence procedures and processes in place to prevent violations by their personnel.
The Working Group supports non-binding and voluntary initiatives, but notes that they are insufficient and in no way an adequate substitute for a binding regulatory framework.
The Working Group therefore recommends moving beyond self-regulatory regimes and calls for a binding international regulatory framework governing the conduct of private military and security companies. Any such framework should fully reflect the broadened operating spaces of these companies, including in the humanitarian field.
Ladies and Gentlemen,
I thank you for your attention and I look forward to engaging in a constructive dialogue.