Table of Contents

A. Introduction

B. Analysis of national legislation

1. Regulation of the activities of PMSCs

2. Scope of legislation

3. Licensing, authorisation, registration of PMSCs, and training of their personnel

4. Permitted and prohibited activities

5. Rules on acquisition of weapons and the use of force and firearms

6. Accountability and remedies

7. Ratification of regional and international instruments on mercenaries

C. Conclusion and recommendations

A. Introduction

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As noted in its reports in 2013 and 2014 to the Human Rights Council (A/HRC/24/45 and A/HRC/27/50), the Working Group continues to believe that it is critical to study and identify legislative approaches regarding the activities of PMSCs (private military and security companies) and to assess the effectiveness of such legislation in protecting human rights and promoting accountability for violations. For this reason, the Working Group continued with its project to identify common points, good practices and regulatory gaps regarding national legislation on PMSCs. The Working Group would like to thank all Member States which submitted relevant laws and regulations.

Following the first phase of the research that focused on samples of English and French speaking countries in Africa and some selected countries in Asia(A/HRC/24/45 and A/HRC/27/50), the current report presents the Working Group’s findings on the national legislation of France, Hungary, Switzerland and the United Kingdom of Great Britain and Northern Ireland (United Kingdom).

The data of the current analytical study have been collected through a desk-based research that used various sources, including the respective national laws1, the mission report of the Working Group to the United Kingdom of Great Britain and Northern Ireland2, the 2012 report of the open-ended intergovernmental working group to consider the possibility of elaborating an international regulatory framework on the regulation, monitoring and oversight of the activities of private military and security companies on its second session3, the findings of the PRIV-WAR project4, the information collected by Private Security Monitor5, the 2011 study of the Confederation of European

1 France: Loi no. 83-629 du juillet 1983 réglementant les activités privées de surveillance, de gardiennage et de

transport de fonds (“Law No. 83-629”) Switzerland: Loi fédérale sur les prestations de sécurité privées fournis à l’étranger du 27 septembre 2013 (“LPSP of 2013”), Concordat sur les entreprises de sécurité du 18 octobre 1996 (“Concordat on security companies of 1996”), Concordat sur les prestations de sécurité effectuées par des personnes privées du 12 novembre 2010 (“Concordat on the services of private security companies of 2010”), Ordonnance sur l’engagement d’entreprises de sécurité privées par la Confédération du 31 octobre 2007 (“Decree on the hiring of private security companies by the Confederation of 2007”) Hungary: Act CXXXIII of 2005 on the rules of personal and property protection activities and private investigation (“Act CXXXIII of 2005”), Decree of Ministry of Interior of 22/2006. (IV.25) on the implementation of Act CXXXIII of 2005 on the rules of personal and property protection activities and private investigation (“Decree 22/2005”), Decree of Ministry of Interior of 68/2012. (XII. 14.) on the training and examination of personnel in charge of police tasks, assistant supervisors and personnel in charge of personal and property protection activities and private investigation (“Decree 68/2012”), Act C of 2012 on the Criminal Code (“Act C of 2012”), Governmental Decree 253/2004. (VIII.31.) on firearms and ammunitions (“Governmental Decree 253/2004”)United Kingdom: Private Security Industry Act 2001 (“PSIA of 2001), Export Control Act 2002 (“ECA of 2002”)2 Report of the Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination, 19 February 2009, A/HRC/10/14/Add.23 Report of the open-ended intergovernmental working group to consider the possibility of elaborating an international regulatory framework on the regulation, monitoring and oversight of the activities of private military and security companies on its second session, 24 December, 2012, A/HRC/22/414 France: PRIV-WAR Report – France, National Reports Series 11/09, The Regulatory Context of Private Military and Security Service sin France, V. Capdeville, University Paris II & H.Cherief, University of Dijon 21 May 2009, PRIV-WAR Report, The United Kingdom, National Reports Series 01/09, The Regulatory Context of Private Military and Security Services in the UK, Kerry Alexander and Nigel White, University of Sheffield 30 June 2009.5 See http://psm.du.edu/

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Security Services “CoESS Facts & Figures”6 and other relevant sources publicly available on the internet7.

The report reviewed those laws that specifically focus on PMSCs and their activities that States made available for the purpose of the current analysis. The report did not cover other related pieces of legislation (such as criminal codes, procedures regarding civil liability, general laws/rules on business registration or on the use of firearms), or regulations, policies, administrative measures or self-regulations.

The main topics addressed in the survey were: a) the scope of the legislation; b) licencing, authorisation, registration of PMSCs and the training of their personnel; c) permitted and prohibited activities of PMSCs; d) rules on acquisition of weapons and the use of force and firearms by PMSC personnel; e) accountability for violations of the law committed by PMSC personnel/remedies provided for victims; f) ratification of mercenary conventions.

B. Analysis of national legislation

The research shows that the selected and analysed European countries address the question of private security companies and their activities by mainly focusing on the surveillance or the protection and guarding provided to persons and property/goods, the transportation, protection and shipment of cash, funds, jewels, precious metals and other valuables and the service of private investigation. The study reveals that none of the analysed legislation covers the activities of private military companies and their provided services.

The research notes that only one country’s national legislation has extraterritorial applicability and covers the activities of PMSCs abroad (Switzerland), whereas the rest of the examined legislation focuses on the domestic sphere (France, Hungary, United Kingdom). It is to be noted as well that only one State includes a clear-cut prohibition of PMSC personnel to take direct part in hostilities (Switzerland) and the other analysed States’ laws remain rather vague or absent in regulating this point.

The research shows at the same time that, while the analysed countries are not States Parties to the United Nations Mercenaries Convention, all have at the national level regulations on the prohibition of mercenary activities.

1. Regulation of the activities of PMSCs

With regard to the national legislation of PMSCs…The analysis shows that in general States have rather detailed national legislation covering the activities of the private security industry that provides detailed rules on licensing and authorisation of private security services and on the necessity of providing training to PMSC personnel. 6 CoESS Fact and Figures , available at: http://www.coess.org/_Uploads/dbsAttachedFiles/Private_Security_Services_in_Europe-CoESS_Facts_and_Figures_2011(1).pdf7 Elke Krahmann: Regulating Private Military Companies: What Role for the EU?, in Contemporary Security Policy, Vol. 26, No. 1 (April 2005), pp. 103-125, Regulating Private Security in Europe: Status and Prospects, by Hans Born, Marina Caparini, and Eden Cole, Geneva Centre for the Democratic Control of Armed Forces (DCAF) Policy Paper – №20, „The Potential Use of PMSCs to Fulfill the EU Security Strategy”, by Marco Marilli, in Central European Journal of International and Security Studies, Vol 5, Issue

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At the same time the research revealed that, with the exception of Switzerland, none of the analysed legislation included international human rights and humanitarian law references in the criteria of authorisation of PMSC activities or any other related standards regarding the selection process and the training materialsWith regard to the national registration of PMSCs, the study points out that none of the analysed States’ national legislation requires from PMSCs a specific registration other than the general registration in the trade and commerce register.

The study also emphasizes that while States in general seem to have detailed provisions on the permitted and prohibited activities, with the exception of Switzerland, the relevant laws are not specific and exhaustive enough related to those acts that PMSCs shall not carry out in any circumstances, including the personnel’s direct participation in hostilities.

The research notes that none of the analysed legislation includes any provisions on the illegal acquisition of weapons and on illicit trafficking in arms specifically by PMSC personnel and their consequences. In addition, the study reveals that the regulatory approaches regarding the use of force and firearms are rather divergent: the Hungarian and the Swiss national legislation entirely prohibits the use of force and firearms in all situations except for the case of self-defence and State-exigency, in France the use of force is allowed by certain PMSC personnel to carry out specific activities and in the United Kingdom there is no related provision available at the national legislation level.

Finally, with regard to the accountability of PMSCs and their personnel, the analysis points out that the relevant legislation lacks specific rules on the content of monitoring activities and inspections, as well as references to the company’s or its personnel’s compliance with the standards of international human rights law and humanitarian law, and to effective remedies to victims.

The following comparative thematic analysis provides further specific details and examples on these general points.

2. Scope of legislation

This section looks at whetherthe analysed legislation covers both private military companies and private security companies; the meaning of the terms used for defining the scope of the application of the relevant laws; whether the analysed laws regulate on the direct participation in hostilities of PMSC personnel; whether the legislation applies to the export of security and/or military services beyond their borders; and whether or not such laws apply extraterritorially.

The research revealed that all analysed countries have national legislation on the private security industry. However, the specificity of the regulation in the United Kingdom is that, apart from some general provisions related to licencing and authorisation, it lacks a detailed national legislation on the activities of PMSCs, therefore the industry was inclined to adopt a self-regulatory approach to regulate the conduct of its activities within the framework of the British Association of Private Security Companies (launched in 2006), including financial sanctions, compulsory training courses,

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site inspections and suspending or withdrawing membership rights. 8 In a written Ministerial Statement in October 2013 the Foreign and Commonwealth Office stated that the United Kingdom has undertaken to establish a system of national certification to professional standards for PSCs, which would measure PSCs’ implementation of the commitments and principles set out in the International Code of Conduct for Private Security Service Providers (ICoC). The Ministerial Statement strongly encouraged all PSCs working in complex environments abroad to pursue certification to these standards by accredited certifying bodies9. Also, as it was noted in its response to the Working Group’s request for national legislation and regulations relating to PMSCs, the United Kingdom “believes the most effective way to promote high standards for PMSCs internationally and reduce the risk that their activities might give rise to human rights or international humanitarian law concerns is through voluntary regulation of the sector. ” The United Kingdom added its intention “to introduce standards for private security companies working on land or at sea in complex or high risk environments on which UK-based PSCs will be able to seek certification by independent third party auditors appointed by the UK accreditation service.” 10

In 2011, the Department for Transport issued a Guidance to UK Flagged Shipping on Measures to Counter Piracy, Armed Robbery and Other Acts of Violence Against Merchant Shipping with the aim of “assisting all UK registered ship owners, companies, ship operators, masters and crews in understanding the risk of piracy, armed robbery and other acts of violence against ships, and [to remind] them of the importance of taking action to deter such acts and advises on how to deal with them should they occur”. The Guidance paper includes no references to human rights or any other legal standards.

As a common point, all of the four analysed countries’ national legislation covers the activities of local private security companies11 ,including the surveillance or the protection and guarding provided to persons and property/goods, the transportation, protection and shipment of cash, funds, jewels, precious metals and other valuables, as well as the service of private investigation 12. In

8 PRIV-WAR Report – The United Kingdom, The Regulatory Context of Private Military and Security Service sin the UK, Kerry Alexander and Nigel White, University of Sheffield, 30 June 2009, Section 1.6. (pp. 16-18). At the same time, in the Parliamentary session 2006/2007 more than 100 members of the Parliament signed an early day motion (EDM 690) urging the Government to take steps towards a binding legislation and in the parliamentary session 2007/08 yet another early day motion (EDM 785) emphasized that “self-regulation by the industry is not appropriate in this instance” and urged “the Government to bring forward legislative proposals for the control of the PMSC sector as an urgent priority”. (EDM 785, “Private Military and Security Companies”, 24 January 2008, primary sponsored by David Anderson. See more in the PRIV-WAR Report – The United Kingdom – National Report Series 01/09, The Regulatory Context of Private Military and Security Services in the UK, Kerry Alexander and Nigel White, University of Sheffield, 30 June 2009, Section 2 „Political Debate”)9 Foreign and Commonwealth Office, Written Ministerial Statement on International Code of Conduct for Private Security Providers Association Launch, 15 October 2013, available here: http://psm.du.edu/media/documents/national_regulations/countries/europe/united_kingdom/united_kingdom_written_ministerial_statement_icoca_launch_2013.pdf10 Available here: http://www.ohchr.org/EN/Issues/Mercenaries/WGMercenaries/Pages/NationalRegulatoryFrameworks.aspx11 France: Law No. 83-629, Article 1, Switzerland: Concordat on security companies of 1996, Article 4 and Decree on the hiring of private security companies by the Confederation of 2007, Article 2, Hungary: Act CXXXIII of 2005, Article 1, para 1, the United Kingdom: PSIA of 2001, Schedule 2, Part 1.12 France: Law No. 83-629, Article 1, paras 1-3 and from Article 20 to Article 33, Hungary: Act CXXXIII of 2005 Article 1, para 2, Switzerland: Concordat on security companies of 1996, Article 4 and Decree on the hiring of private security companies by the Confederation of 2007, Article 2, the United Kingdom: PSIA of 2001, Schedule

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addition, in the United Kingdom the term “activities of a security operative” includes the services provided by security consultants and keyholders (i.e. keeping custody of, or controlling access to, any key or similar device for operating any lock)13 and according to a recent piece of legislation in Switzerland, the relevant law even covers traffic management, assistance provided to public authorities, the transport of detainees, and the private detective services as well14.

None of the analysed laws cover the activities of private military companies or their activities and services.

As for the geographical scope of application, the analysed States’ legislation varies in scope and content. France, for example, has no extraterritorial scope and therefore the actions of French private security companies and their personnel fall outside the scope of the domestic legislation15. The Hungarian legislation has no extraterritorial application either. The Swiss legislation at the same time not only covers the activities of local security companies16 and private security companies17, but the services provided by private security companies hired locally or abroad by the Swiss Confederation locally18, and by private security companies abroad as well19.With regard to private security services provided abroad, the relevant Swiss law of 2013 regulates a range of private security activities from protection tasks and guarding moveable and immoveable items in complex environments to guarding prisoners, searching persons and objects to operational or logistical support for armed or security forces, counselling and training armed and security forces, as well as intelligence activities20. The law on private security services abroad regulates the activities of natural persons, legal persons and partnerships that provide security services from Switzerland abroad or from abroad in Switzerland, as well as the activities of those private security companies that are established, managed, or controlled in Switzerland and provide security services abroad21.

In the United Kingdom, the Export Control Act 2002 envisages controls for the provision of goods, the transfer of technology, and technical assistance abroad22, but it does not specifically focus on the regulation of the private military industry. As it was observed already earlier by the Working Group, the legal system of the United Kingdom is based on the principle of territoriality, which means that under United Kingdom law, individuals cannot be prosecuted in the United Kingdom for crimes committed abroad and those cases of few exceptions when British nationals (committing sexual offence crimes, murder, or manslaughter abroad) could be tried in a British court of law, the specificity related to employees of private military and security companies is missing23.

2, Part 113 PSIA of 2001, Schedule 2, Part 114 Concordat on the services of private security companies of 2010, Article 315 Report on Swiss-Based Military and Security Service Providers Operating in Crisis and Conflict Regions - Phase II: Comparative Study of Regulatory Approaches, DCAF, 2007, available at: http://www.ejpd.admin.ch/content/dam/data/sicherheit/gesetzgebung/sicherheitsfirmen/ber-dcaf-teil2-e.pdf16 Concordat on security companies of 199617 Concordat on the services of private security companies of 201018 Decree on the hiring of private security companies by the Confederation of 200719 LPSP of 201320 LPSP of 2013, Article 421 Ibid., Article 222 ECA of 2002, Provisions 1-4 23 A/HRC/10/14/Add.2, paras 29 and 30

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With respect to the regulation of private military and security companies abroad, in 2002 the Foreign and Commonwealth Office (FCO) developed the “Green Paper”, which outlined six options for the regulation of such companies operating out of the United Kingdom24. The Green Paper was reviewed by the Government of the United Kingdom in 2005 and the various options have been discussed, but no action was taken since then. As it was noted by the Working Group, following its mission to the United Kingdom, the Foreign Affairs Select Committee was formed as the parliamentary body in charge of monitoring the progress made on legislation regarding the activities of PMSCs, which made some recommendations towards wider transparency and regulation of British PMSCs.

As for the PMSC personnel’s direct participation in hostilities, the Swiss law very clearly prohibits direct participation in hostilities in an armed conflict abroad, including the hiring, training and provision of security personnel for direct participation in hostilities abroad, or establishing, managing or controlling a company in Switzerland involved in such activities25, and the relevant law also has an extraterritorial scope of application. The laws in the United Kingdom do not define what military or security activity can be outsourced to private companies, but – as it has been stated by the Government lately - there is an “understanding” that military activity in situations of armed conflict can only be delivered by military personnel under the command of a commissioned officer 26. The Hungarian legislation does not rule on the PMSC personnel’s direct participation in hostilities, but it emphasizes that its provisions are not applicable to the members of armed forces and State law enforcement agencies.27 The relevant French laws have no provisions of PMSC personnel’s direct participation in hostilities.

The vague definition of the ambit of services and the fact that none of the analysed legislation covers private military companies or their military activities result in regulatory gaps, especially considering that PMSCs normally provide various other services besides only guarding and patrolling, such as military services, as well as training and advisory services on security matters and implementation of security measures. With the exception of Switzerland, the absence of the rules on direct participation in hostilities of PMSC personnel and the lack of extraterritorial application of the concerned laws, as well as the missing provisions on the export of security and military services abroad further add to the regulatory gaps, especially with regard to the transnational nature of private security and military services, and the generally high likeliness of PMSC personnel’s use of force and involvement in hostilities. The insufficient regulation regarding the scope of the analysed legislation seriously undermines the rule of law and the effective functioning of a democratic State institution responsible for ensuring public safety in accordance with international human rights standards and national laws.

3. Licensing, authorisation, registration of PMSCs and training of their personnel

24 House of Commons Foreign Affairs Committee „Private Military Companies”, Ninth Report of Session 2001-02, HC 922, Published on 1st August 2002 by authority of the House of Commons, London, The Stationary Office Limited, available here: http://www.parliament.the stationeryoffice.co.uk/pa/cm200102/cmselect/cmfaff/922/92202.htm – the described six options were as follows: 1. A ban on military activity abroad; 2. A ban on recruitment for military activities abroad; 3. A licensing regime for military services; 4. Registration and notification; 5. A general license for PMCs/PSCs; 6. Self-regulation: a voluntary code of conduct.25 LPSP of 2013, Article 826 A/HRC/22/41, para 53 and Cover letter of the Government of the United Kingdom responding to the request of the Working Group with regard to national legislation and regulations relating to private military and/or security companies.27 Act CXXXIII of 2005, Article 2

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This section analyses the relevant procedures and entities of licencing, authorization, registration of PMSCs and the training of their personnel, as well as whether the relevant criteria related to human rights law have been built into these processes.

Similar to what has been already noted by the Working Group with regard to the legislation of Anglophone28 and Francophone African countries29, in two of the analysed four countries’ national legislation the entities that issue authorizations and licences are appointed by or exist within the ministry responsible for internal security. Accordingly, in France the authorisation for all activities covered by the law is delivered by the department Prefect (or in Paris by the Police Prefect) 30 and accredited by the Council of State according to a set of conditions31. It is interesting to note though that the relevant law in France specifically emphasizes that by providing authorization for the surveillance or the protection and guarding provided to persons and property/goods, the transportation and protection of funds, jewels and precious metals activities, the authorizing body does not commit in any ways for any responsibility of public authorities.32 Similarly, in Hungary, private security activities are only to be carried out with a licence issued by the police33.

In the United Kingdom, it is the Security Industry Authority that issues licences to domestic “ activities of a security operative”34 and the Swiss legislation regulates the provision of private security services abroad by requiring from all persons and companies intending to carry out security services abroad to notify the “competent authorities”35.

With regard to the criteria for authorisation, according to the relevant laws in France, among others, no accreditation is provided to executives and employees who have been convicted for a misdemeanour or a crime according to the criminal record, who have been expelled from France, or whose behaviour is contrary to the honour, integrity, moral standards, or against the security of people or goods, public security or the security of the State36, and no authorisation is given to activities whose nature causes “trouble to public order”37. The French legislation has no reference to required human rights standards in either cases.

While in the relevant law of the United Kingdom it is stated that the licensing criteria are developed by the Security Industry Authority38 and the licencing conditions are set by the Secretary of State39, no reference is made to human rights standards to be integrated. As it was recorded in the report of the Working Group on its country mission in 2008, with regard to the contracts of the British Government employing private military and security companies outside of its territory – lacking relevant legislation -, all companies have to fill a pre-qualification questionnaire and the companies are chosen according to criteria determined by the procurement services of Government. These

28 A/HRC/24/45, para 39.29 A/HRC/27/50, para 17. 30 Law No. 83-629, Articles 7 and 25.31 Law No. 83-629, Article 5.32 Law No. 83-629, Article 8.33 Act CXXXIII of 2005, Article 534 PSIA of 2001, Article 735 LPSP of 2013, Articles 10-1236 Law No. 83-629, Articles 5 and 2237 Law No. 83-629, Article 7, para 3 and Article 25, para 338 PSIA of 2001, Article 739 Ibid., Article 9

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criteria usually focus on professional training of personnel and acquaintance of personnel with basic norms of law, including criminal, civil and international humanitarian law. In all contracts, there are clauses that allow for the termination of a contract if a human rights violation is proven. However, as the report pointed out, there is no formal system specifically for the review of contracts with private military and security companies. These contracts are subject to only a general selection process.40

The report of the Working Group also pointed out that for the companies which are not hired by government bodies it is hard for the Government to exert any control or to verify their compliance with human rights standards if they are not hired by the British Government41.

According to the respective Swiss legislation, the “competent authorities” in charge of approving the activities of the concerned PMSCs may decide to prohibit or approve the concerned activity or to undertake further investigation, for example in the case of the authorities’ awareness of the company’s violation of certain Swiss or international legal obligations42. Furthermore, it is also stated in the Swiss law that the relevant authorities can decide to prohibit in whole or in part certain activities because they may be contrary to the aims of the law, including services that may be used to commit human rights violations43 and it states at the same time that a company’s activities will be prohibited in any case if, for example, it committed in the past human rights violations without providing the guarantees of no repeat, or it does not respect the International Code of Conduct for security service providers44. In Switzerland, the law is very explicit and detailed regarding the selection process and the related required criteria. Firstly, it rules on certain guidelines for the federal authorities to follow when employing private security companies abroad for the protection of persons and guarding and surveillance of goods and real estates45. Secondly, the relevant legislation also emphasizes that prior to hiring such company, the federal authorities must ensure that the company meets some requirements, including the recruitment, training and oversight of its personnel; that its reputation and business conduct are irreproachable, as attested by its adherence to the International Code of Conduct for security service providers; provides sufficient internal controls to ensure that its personnel will respect the norms of behaviour and be sanctioned for failure to do so and that it has a civil liability insurance for an amount equivalent to the risk involved related to the business activity46.

As for the entrance requirements in Hungary, the law requires from at least one member/partner of the company to have a guard’s card (delivered by the police), and from the company to have a liability insurance pertaining to the private security activity. No operational permit can be issued to a company whose senior officer does not have a clean criminal record, whose members or owners have been fined for their past company activities and who did not pay the fines or to a company that was prohibited in the past by court to exercise its activities47. The Hungarian legislation does not refer to human rights standards either.

40 A/HRC/10/14/Add.2, para 2641 Ibid., Article 2742 LPSP of 2013, Article 13, para 1, d)43 Ibid., Article 14, para 144 Ibid., Article 14, para 245 Ibid., Article 3046 Ibid., Article 31, para 147 Act CXXXIII of 2005, Article 5

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While it is clear that all these laws set as a precondition for authorization of the activities of a private security company certain criteria at least related to the behaviour of its management and personnel and the civil liability of the company, with the exception of the Swiss legislation, none of the analysed laws include any reference to human rights law criteria to be considered by the authorizing bodies.

With regard to the registration of PMSCs, at present, none of the analysed countries’ legislation requires a specific registration of PMSCs other than the general registration in the trade and commerce registers.

As for the training of PMSC personnel, from among the four analysed countries’ legislation, it is the Swiss law that provides the most details and includes the most references to human rights related standards. More particularly, it requires from the company to train its personnel in the protection task to perform and the applicable national and international law and certain essential areas, such as fundamental rights, use of force and arms in situations of self-defence or state of necessity, conduct to be adopted with persons resisting or behaving violently, first aid, assessment of damage to health resulting from the use of force, and combating corruption48. At the same time, the Swiss law allows an exception to these requirements if no company satisfying them is available and the protection task cannot be completed otherwise, but nevertheless stipulates a maximum duration of six months for such contracts49.

In Hungary, it is the Ministry of Interior that is in charge of organizing and providing the necessary training for those involved in private security services, in cooperation with the Chamber of Personal and Property Protection and Private Detective Activities and the National University of Public Service50. With regard to the training standards, the relevant law makes no reference to human rights law, only requires from the personnel involved in private security services to be aware of the fundamental ethical and professional rules, to use the coercive measures and tools according to the law, and to apply proportionally the coercive measures in cases of self-defence51.

In France, according to the relevant legislation, all those persons who are authorised to carry out private security activities of surveillance or the protection and guarding provided to persons and property/goods, the transportation and protection of funds, jewels and precious metals must be provided without delay a training to support their professional abilities52 (the same training is not required for the personnel of companies carrying out acts related to private investigation). However, the law does not make any reference to human rights standards.

According to the Private Industry Act in the United Kingdom, among the licencing criteria set out by the Private Security Authority, the Authority may include criteria “for securing that those persons have the training and skills necessary to engage in the conduct for which they are licenced”53 and among the licencing conditions, the Secretary of State and the Authority “shall include power to prescribe or impose conditions containing requirements as to the training […] which the licensee is to undergo”54, but the law makes no reference to human rights standards either.

48 LPSP of 2013, Article 32, para 249 Ibid., Article 32, paras 3 and 450 Decree No. 68/2012, Articles 2 and 3, Act No. CXXXIII of 2005, Article 38, para 1, d) and 51 Ibid., Annex 252 Law No. 83-629, Article 6-1, para 2.53 Private Security Act, Article 7, para 3, b)54 Ibid., Article 9, para 1, a)

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The lack of a single dedicated body responsible for licencing and monitoring the activities of PMSCs, the generally missing human rights criteria for the authorization process (except for the case of Switzerland), as well as the lacking national registration systems all result in a private security industry without effective control. The analysis of the available legislation shows that while States have mostly succeeded in establishing a framework for both the selection and training of PMSC personnel, the content of these important processes is not well developed and does not take into account explicitly human rights standards.

Considering the diverse activities and the broad geographical scope covered by PMSC services, while various systems of licensing and oversight may be possible, the Working Group’s view is that a standard set of human rights based mandatory requirements of authorization, a national registration system, and a single dedicated licensing expert body would be desirable in order to guarantee the principles of the rule of law, to scrutinize effectively the conduct of PMSCs and the implementation of the necessary international human rights standards, and to ensure the accountability of PMSC personnel for violations of the law. Also, in order to ensure that the relevant international human rights law and humanitarian law standards are respected and effectively used in the course of PMSC operations, to minimize the risk of their violations, and to guarantee the effective accountability of private military and security companies and their personnel, it is essential to introduce human rights based vetting mechanisms of employees, as well as mandatory legal trainings with references to the relevant international human rights and humanitarian law standards.

4. Permitted and prohibited activities

This section focuses on permitted and prohibited activities of PMSCs, as well as on the participation in the activities of PMSCs by law enforcement agents.

The result of the research shows that in some countries’ national legislation (France and Hungary) private security companies are specifically required to indicate the private nature of their work in order to avoid confusion between the activities of private persons and those of public security services.

In France, the relevant law emphasizes that the only activities to be carried out by security providers must be guarding and protection provided to persons and property/goods and the protection provided to the transport of funds, jewels and precious metals55 and notes that private security companies are obliged to clearly indicate in their names the private nature of their work in order to avoid creating confusion with regard to public security services, such as the services of the police and the gendarmerie56, and that they shall make the same distinction regarding the uniform and the professional identity card of their employees57. Similarly, in Hungary the relevant legislation notes that those involved in private security activities have no public authority powers, cannot use titles and insigna of the authorities, must use their uniform, and must not prevent the authorities from carrying out their powers58.

The French law permits private security activities related to surveillance or the protection and guarding provided to persons and property/goods, the transportation and protection of funds, jewels 55 Law No. 83-629, Articles 1, 2 and 2156 Ibid. 57 Ibid., Articles 10, 11-3 and 11-758 Ibid., Article 16, paras 1-3

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and precious metals to be carried out inside the private guarded building, and only with exceptional authorizations to be carried out in public domains by the department Prefect or in Paris by the Prefect of Paris in cases of surveillance of thefts, vandalism, and burglary against the guarded property59. As in France only exclusively private security activities are allowed to be carried out by private security companies, implicitly all other services that are not linked to the private security activities covered by the scope of the law are prohibited60. Similarly, in Hungary, the relevant legislation draws a clear dividing line between the activities of persons involved in private and public security services by pointing out that the provisions of the law are not applicable among others, to the personnel of the Hungarian Armed Forces and the Hungarian Police Forces61.

With regard to the surveillance or the protection and guarding provided to persons and property/goods, the transportation and protection of funds, jewels and precious metals further prohibited activities in France include the interference of PMSC personnel in a labour conflict or related event or the surveillance of political, philosophical, or religious views or people’s trade-union membership.62 Other than that, the relevant law does not list in France further specific prohibited activities reserved for the police or the military. While the Council of State noted in France that any contractual delegation of police prerogatives is illegal63, the law on private security activities allows to private security companies to search bags and in exceptional circumstances when the public security is under grave threat to carry out even body search. The law notes that the exceptional circumstances need to be defined by a decree issued by the Prefect, but provides no further details in this respect.64

On the other hand, the Swiss law on the provision of private security services abroad specifically prohibits certain activities, such as the direct participation in hostilities in an armed conflict abroad (including the hiring, training and provision of security personnel for direct participation in hostilities abroad, or establishing, managing or controlling a company in Switzerland involved in such activities)65, and the provision of security services associated with serious violations of human rights (namely the provision of private security services to recipients that will presumably use them to commit serious human rights violations)66. The law also lists certain activities that the relevant authorities can decide to prohibit in whole or in part because they may be contrary to the aims of the law, including services that take place in armed conflict, that may be used to commit human rights violations, or services that are used to provide operational and logistic support to armed forces 67 and states at the same time that a company’s activities will be prohibited in any case if, for example, it committed in the past human rights violations without providing the guarantees of no repeat, or it does not respect the International Code of Conduct for security service providers68. Nevertheless, the Swiss law notes that exceptionally, if a superior State interest manifests, the Federal Council may

59 Ibid., Article 360 Ibid., Articles 2 and 21.61 Act CXXXIII of 2005, Article 262 Law No. 83-629, Article 463 Conseil d’État, 17 June 1938, Ville de Castelnaudary, rec. p. 191; Conseil d’État, 1er April 1996, Commune de Manton, rec. p. 175.64 Law No. 83-629, Article 3-1.65 LPSP of 2013, Article 866 LPSP of 2013, Article 967 Ibid., Article 14, para 168 Ibid., Article 14, para 2

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authorise an activity that normally would be prohibited69. In the Swiss Federation’s explanatory report of 2011 on the project of drafting the Swiss law on services provided by private security companies abroad notes, as an example for such exception an operation to liberate Swiss hostages abroad is given, however, without further details on the required human rights guarantees in such exceptional situation.70

The relevant law in the United Kingdom does not provide a list of prohibited activities, it only notes that it is an offence to engage in a conduct for which a licence is required71.

As for the participation of law enforcement agents in the activities of PMSCs, in France, as a general rule, no former police or military personnel can take up executive or employee positions in private security companies with regard to activities related to surveillance or the protection and guarding provided to persons and property/goods, the transportation and protection of funds, jewels and precious metals72. As for the private investigation services, the law specifies that they cannot be carried out by former policemen or gendarmes before a 5-year period following their cessation of activity73. Similarly, in Hungary, the law emphasizes that staff members of the police and the civil national security services performing official duties related to personal and property protection activities and those employees that are not staff members, but contribute to related official duties, cannot be members or managers of companies carrying out private security services and can only perform – with the permission of the supervisor - planner-repairer activities of property protection systems and protection, protection of moveable and immoveable items and the transport and guarding of cargo and money74.

The research shows that those laws that address the question aim to exclude from the activities of PMSCs those that may overlap with the functions of the police or the armed forces. However, only half of the analysed legislation deals with this important issue. While there are various views on whether outsourcing certain activities is necessary or wise, outsourcing raises new challenges for the application of international human rights and humanitarian law, especially with regard to ensuring that contractors are held accountable for violations, and that victims of human rights abuses have access to remedies. Therefore, it is essential to prohibit PMSC personnel’s involvement in combat or mercenary related activities, in order to avoid potential risks to certain fundamental human rights, such as the right to security, right to life, the prohibition of arbitrary deprivation of liberty and the prohibition of torture, cruel, inhuman or degrading treatment.

5. Rules on acquisition of weapons and the use of force and firearms

This section looks at whether the reviewed laws have regulations on illegal acquisition of weapons and trafficking in firearms by PMSC personnel and the consequences of these acts, as well as the use of force and firearms by PMSC employees.

In France, according to the laws available for this analysis, there are no rules on illegal acquisition of weapons. At the same time, the law specifies that the employees of those private security companies

69 Ibid., Article 1570 http://www.ejpd.admin.ch/content/dam/data/sicherheit/gesetzgebung/sicherheitsfirmen/vn-ber-f.pdf71 PSIA of 2001, Article 3, para 172 Law No. 83-629, Article 973 Ibid., Article 2174 Ibid., Article 3

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that carry out surveillance or guard property/goods can be armed under the conditions laid down by a decree issued by the Council of State75. With regard to those private security companies whose activities are involved in the transportation and protection of funds, jewels and precious metals, the law states that the employees are armed, unless the funds are placed in devices that can be destroyed and delivered in unmarked vehicles. As for the conditions of carrying the concerned weapons, the law again makes reference to a decree issued by the Council of State76. At the same time, the law emphasizes that staff performing the activity of protection to people cannot be armed77.

As for the Council of State’s decree to define the conditions in which certain categories of private security agents can bear weapons, the law notes that it should specify the categories and the types of weapons that may be allowed to bear, the conditions of their acquisition, retention and handing over by the person holding the authorisation, the required related trainings, as well as the conditions under which the weapons are held during service and stored during out of service times 78. The possession and carrying of arms is strictly regulated by the relevant decree of the Council of State79

and only specific arms and elements of arms are authorized to be used by companies securing and guarding property/goods80.

According to the relevant law in Switzerland, the personnel of private security companies cannot be armed abroad81, but in case the situation exceptionally requires that the personnel bear arms to use in cases of legitimate self-defence or state of necessity, the contracting authority must stipulate it in the contract82. The law notes that it is also the contracting authority’s responsibility to ensure that the personnel have the necessary authorization according to the applicable legislation. The Swiss law has no provisions on illegal acquisition of weapons or its consequences. According to the relevant law, it is the company’s responsibility to train its personnel, among others, on the use of force and arms in situations of self-defence or state of necessity, the conduct to be adopted with persons resisting or behaving violently, and the assessment of damage to health resulting from the use of force83. The law notes that if the protection task cannot be executed otherwise, the Federal Council may exceptionally authorise the use of coercive and police measures even beyond the situation of legitim self-defence or state of necessity84.

The law in Hungary allows security guards to carry pepper spray, batons, guard dogs and firearms, which can be used only in cases of self-defence and exigency85 (without clarifying though what “exigency” may mean). According to the Hungarian legislation, the mandatory permit to carry

75 Ibid., Article 10, para276 Ibid.77 Ibid. 78 Ibid., Articles 10, para 2 and 11-5, para 379 Décret no. 95-589 du 6 mai 1995 rélatif a l’application du décret du 18 avril 1939 fixant le régime des materiels de guerre, armes et munitions (version abrogée le 6 septembre 2013) („Decree no. 95-589”)80 Decree no. 95-589, Article 26, para 281 LPSP of 2013, Article 34, para 182 Ibid., Article 34, para 283 Ibid., Article 31, para 284 Ibid., Article 3585 Act CXXXIII of 2005, Article 27, para 4

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weapons is issued by the police86. The Hungarian legislation has no provisions on illegal acquisition of weapons and trafficking in firearms by PMSC personnel, or on the consequences of these acts.

In the United Kingdom, it is the Export Control Act 2002 that envisages controls for the provision of trade (trafficking and brokering) in military, paramilitary and certain other goods between countries outside the UK (some trade controls apply to UK persons anywhere in the world, as well as to activities carried out wholly or partly in the UK)87, which could also be applied eventually for PMSC personnel as well, though the law was not explicitly targeting the regulation of the private military industry. In the United Kingdom there are no provisions at the national legislation level with respect to the use of force and firearms by PMSC employees.

The very fact that in the laws relevant for the activities of PMSCs, there are no specific provisions on the illegal acquisition of weapons and on illicit trafficking in arms by PMSC personnel is a clear gap of regulation. In order to ensure that PMSC personnel respect the international standards related to arms control licensing procedures, arms transfer, acquisition of weapons, trafficking in arms and that the staff of PMSC can be held accountable for illegal acquisition of weapons and illicit trafficking in arms, it is essential to establish some standard methods of acquiring, exporting, importing, and possessing weapons by private military and security companies and their employees. In addition, it is desirable to introduce a restraint in the legal acquisition by PMSC personnel of weapons of mass destruction, or weapons resulting in overkill, mass casualties or excessive destruction.

Different legislation regulates the use of force and firearms differently from prohibiting it except for the situation of self-defence and State exigency to allowing the use of force and firearms only to PMSCs carrying out certain specific activities or not regulating the question at all at national level. Considering that the personnel of PMSCs often use force during their missions in their home countries and abroad, and the fact that they carry out activities in conjunction and in cooperation with the police and military forces, this issue requires more focused regulation. In order to avoid potential risks to some fundamental human rights, such as the right to security and the right to life, there must be a clear distinction between the activities of PMSCs and the police and armed forces, a prohibition of PMSC personnel’s involvement in combat and mercenary related activities, as well as a guarantee that in all other activities only adequate, mandated and proportional use of force is allowed.

6. Accountability and remedies

This section covers the reporting requirements for alleged offenses and violations; the relevant rules on accountability and the related procedures for remedies; the involved human rights aspects and accountability for human rights violations committed by PMSC employees.

As a common point, firstly it is to be noted that in none of the analysed States’ legislation there are provisions on reporting obligations for infractions or violations of law committed by the personnel of private security companies or any legal provisions on the effective remedies provided to the victims

86 Governmental Decree No. 253/2004, Article 4, para 287 ECA of 2002, Provisions 1-4

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of human rights violations committed by PMSC personnel. Secondly, it is to be pointed out that all analysed laws rule on the regular monitoring of PMSCs differently.

In France, the law rules on a permanent control of private security companies exercised by police officers and gendarmes. According to the relevant legal provision, following a monitoring visit, a report is prepared by the police, which is then submitted by the authority of control to the head of the company as well as to the Prefect of the Department and in Paris, the Prefect of the Police88.

In Switzerland, it is the authorising competent authority that controls the activities of private security companies abroad and that submits a yearly report on its activities to the Federal Council89. The relevant law sets out specific sanctions, including fines and imprisonment, for violations, including direct participation in hostilities and serious human rights violations90. The Swiss law specifically requires a civil liability insurance for the risks involved related to the activities of the company91.

In Hungary, companies carrying out private security services are controlled by the police; the police monitors, among others, the lawfulness of the companies’ activities, whether the company holds a liability insurance, as well as the authenticity of the data registered by the police about the company92. The police carries out a control on an annual base and if it determines a reason that prevents the company from exercising its activities, it withdraws its operating permit and prohibits the continuation of the company’s activities93. According to the relevant Hungarian law, complaints can be submitted against the measures taken by security guards that are then examined by local administrative bodies in administrative proceedings94.

In the United Kingdom, there are no legal provisions existing at the national legislation level to deal with the question of reporting requirements for alleged offenses and violations, the relevant rules on accountability and the related procedures for remedies, or the involved human rights aspects and accountability for human rights violations committed by PMSC employees.

As it was noted earlier by the Working Group related to its mission to the United Kingdom, the Green Paper also deals with the question of the accountability of companies and employees to some extent: it states that the liability which international humanitarian law applies to soldiers committing war crimes would also “apply to employees of PMCs who became involved in armed conflict”.

With regard to the accountability of PMSCs and/or their personnel, the research showed that most of the analysed laws (France, Hungary and Switzerland) focus on acts violating the relevant laws’ provisions regarding the scope of permitted activities, licencing, authorisation, collaboration with the monitoring body, recruitment and other administrative processes95. In addition, the Swiss legislation has specific provisions against those PMSC employees who take direct part in hostilities and those who, by providing private security services, get involved in grave human rights violations 96. The

88 Law No. 83-629, Articles 13 and 30.89 LPSP of 2013, Article 3790 Ibid., Articles 21-2791 Ibid., Article 31, para 1, f)92 Act No. CXXXIII of 2005, Article 8, para 593 Ibid., Article 8, para 794 Ibid., Article 62/A95 France: Law No. 83-629, Articles 14-18 and Articles 31-33, Hungary: Act CXXXIII of 2005, Article 11 and Articles 63-64, Switzerland: LPSP of 2013, Articles 23-24 96 LPSP of 2013, Articles 21-22.

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analysis also revealed that while according to the relevant national legislation in the United Kingdom one of the tasks of the Security Industry Authority is to “monitor the activities and the effectiveness of persons carrying on businesses providing any such services”97, the law does not provide any further information on the ways of such monitoring.

As for the consequences for violations of the laws relevant to the activities of PMSCs, the analysed laws vary and provide a range of sanctions in the forms of imprisonment and fines of individuals 98, as well asfines, temporary suspension of the company’s activities, and withdrawal of authorization.99.The Private Security Industry Act in the United Kingdom makes no reference to sanctions in case of violations committed by PMSCs or their personnel.The conducted research revealed that the analysed monitoring mechanisms vary in form and content in each country, and that with the exception of Switzerland, the analysed laws have no provisions on a company’s or its personnel’s compliance with the standards of international human rights, also none of the analysed countries refer to effective remedies to victims. Considering the transnational nature of PMSC activities and the broad geographical scope of the provided services, as well as the right of victims of human rights violations to effective remedies, it is essential to ensure the accountability of private military and security companies and their personnel to the Government of their country of origin, registration or their country of operation. The Working Group notes that standardized and effective accountability mechanisms need to be put in place to ensure the enforceability of the regimes regulating the activities of PMSCs, as well as the necessary penal accountability and civil liability of both individuals and corporate actors100 for human rights violations.

7. Ratification of international instruments on mercenaries

This section focuses on whether States ratified the UN Convention on Mercenaries and the Additional Protocol I to the Four Geneva Conventions.

None of the four analysed countries signed or ratified the International Convention against the Recruitment, Use, Financing and Training of Mercenaries, but all countries are State members of Additional Protocol to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) defining „mercenary” in article 47, paragraph 2, which also means that all of them are legally bound to implement Protocol I.C. Conclusion and recommendations

The objective of the study was to carry out a comprehensive analysis on national legislation regulating PMSCs in four European countries (France, Hungary, Switzerland and the United Kingdom) to identify and compare common elements, gaps and best practices. The study also informed the Working Group’s efforts to demonstrate the need for a legally binding international instrument regulating the activities of the industry, as well as its future projects to develop guidance for Member States seeking to regulate PMSCs.

97 PSIA of 2001, Article 1, para 2, c)98 France: Law No. 83-629, Articles 14-15, 18 and Articles 31-32, Hungary: Act CXXXIII of 2005, Articles 63-64, Switzerland: LPSP of 2013, Articles 21-2499 France: Law No. 83-629, Articles 16-17 and Article 33, Switzerland: LPSP of 2013, Article 26, Hungary: Act CXXXIII of 2005, Article 11, 100 See Guiding Principles on Business and Human Rights, available at: http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf

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The research revealed that while all four analysed European countries have legislation regulating PMSCs, each country approaches the privatization of the security industry differently, which results in a patchy and inconsistent regulation. Considering the transnational nature of private security and military services, as well as the generally high likeliness of PMSC personnel’s use of force and involvement in hostilities, the Working Group stresses that the very different approaches and the regulatory gaps demonstrated in the current study may result in seriously undermining the rule of law, the effective functioning of a democratic State institution responsible for ensuring public safety, as well as the accountability of PMSC personnel for violations of the law. Furthermore, the noted regulatory gaps create potential risks to various fundamental human rights, such as the right to security, right to life, the prohibition of arbitrary deprivation of liberty, the prohibition of torture, cruel, inhuman or degrading treatment, and the right of victims to effective remedies.

The Working Group reiterates its view that a comprehensive, legally binding international regulatory instrument is the best way to ensure consistent regulation worldwide and adequate protection of the human rights of all affected by the activities of PMSCs. The Working Group emphasizes on the critical need for States to establish minimum international standards to regulate the activities of PMSCs and their personnel in pursuing the realization of these fundamental human rights, in accordance with international human rights and humanitarian law standards.

The research showed that the analysed countries focus on the surveillance or the protection and guarding provided to persons and property/goods, the transportation, protection and shipment of cash, funds, jewels, precious metals and other valuables and the service of private investigation in the domestic sphere, without addressing private military companies. The study also noted that only one country’s national legislation covers the activities of PMSCs abroad and the rest of the examined legislation focuses on the domestic sphere, without ruling on extraterritorial applicability. Considering the often transnational nature of private security and military services, the insufficient regulation regarding the scope of the analysed legislation seriously undermines the rule of law and the effective functioning of a democratic State institution responsible for ensuring public safety in accordance with international human rights standards and national laws. An international convention would provide a standard regulatory framework on various essential issues related to the activities of PMSCs, ensure the accountability of PMSC personnel and guarantee the right to effective remedies of all victims worldwide.

The analysis shows that while in general States have detailed regulations on licensing and authorisation of private security services, as well as on the procedure of selection and training of the personnel, the relevant laws do not include any references to a single dedicated body responsible for licencing and monitoring the activities of PMSCs and to international human rights and humanitarian law in the selection criteria or the training materials. Considering the diverse activities and the broad geographical scope covered by PMSC services, the lack of regulation in these crucial fields may result in ineffective control over the private security industry and its personnel’s activities, and the lack of knowledge of PMSC personnel of human rights standards. The provisions of an international convention on licensing, authorisation, selection and training of PMSC personnel would contribute to the establishment of common and consistent regulation that is desirable to ensure effective scrutiny of the conduct of PMSCs and the implementation of the necessary international human rights standards, as well as to ensure the accountability of PMSC personnel for violations of the law.

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The study points out that despite the detailed provisions on the permitted and prohibited activities, with one exception, the relevant laws are not specific and exhaustive enough related to those acts that PMSCs shall not carry out in any circumstances, including the personnel’s direct participation in hostilities. The research also notes that there are serious regulatory gaps concerning the illegal acquisition of weapons and illicit trafficking in arms by PMSC personnel and their consequences, and there are divergent approaches regarding the use of force and firearms. Taking into account the nature of PMSC activities and the personnel’s potential participation in combat and mercenary related activities, as well as the likeliness of PMSC staff to carry and use weapons, the lack of relevant and standard regulation creates potential risks to certain fundamental human rights, such as the right to security, right to life, the prohibition of arbitrary deprivation of liberty and the prohibition of torture, cruel, inhuman or degrading treatment. An international convention would provide for PMSC personnel some standard rules and methods of acquiring, exporting, importing, possessing and using weapons and would ensure that the staff of PMSC is held accountable for illegal acquisition of weapons, illicit trafficking in arms and prohibited use of force in all parts of the world.

Finally, the study shows that the analysed legislation lacks specific rules on the content of monitoring activities and inspections, as well as references to the company’s or its personnel’s 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. Considering the transnational nature of PMSC activities and the broad geographical scope of the provided services, as well as the right of victims of human rights violations to effective remedies, the lack of relevant rules result in ineffective control over the private security industry. An international convention would ensure the accountability of PMSCs by providing standardized and effective accountability mechanisms. Such mechanisms would also ensure the enforceability of the regimes regulating the activities of PMSCs, as well as the necessary penal accountability and civil liability of both individuals and corporate actors101 for human rights violations.

Further research into national regulatory strategies is clearly needed in order to identify trends, gaps and good practices in regulating PMSCs. To this end, the Working Group encourages Member States which have not yet responded to its request to share with it laws and regulations relating to PMSCs to do so.

101 See Guiding Principles on Business and Human Rights, available at: http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf

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