Report on national laws and regulations relating to PMSCs of selected countries in Africa and in Asia (Part II of the Global Study)
Working Group on the use of mercenaries
To the 27th 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.
This report presents the findings of the Working Group’s ongoing global study of national laws and regulations relating to private military and security companies (PMSCs).
In the report, the Working Group focuses on laws and regulations of eight francophone countries in Africa (namely Burkina Faso, Cameroon, Côte d’Ivoire, the Democratic Republic of Congo, Mali, Morocco, Senegal and Tunisia) as well as those of eight countries in the Asia region (namely China, India, Malaysia, Pakistan, the Philippines, Singapore, Sri Lanka and the United Arab Emirates). While there are common elements in the laws of these countries, diverse contexts at the national level affect the way in which PMSCs are regulated and the regulatory approach of each country significantly varies. Analysis of the legislation in both regions show a regulatory emphasis on the provision of guard and protection services to persons and property in the domestic sphere. None of the legislation deals with private military companies or adequately addresses the issue of military and security services provided abroad and the extraterritorial applicability of relevant legislation.
The transnational nature of PMSCs, the high likelihood of the use of force and involvement in hostilities on the part of PMSC personnel and the gaps in regulations and inconsistency of approaches found in these countries underscore the risk that the status quo can seriously undermine the rule of law and the effective functioning of democratic State institutions responsible for ensuring public safety. Furthermore, the regulatory and accountability gaps noted create potential risks to fundamental human rights, such as the right to security and the right to life, as well as the right of victims to effective remedies.
The study of the laws and regulations reveals a lack of specific rules on the content of monitoring activities and inspections of PMSCs, as well as a lack of references to compliance by the PSC and/or its personnel with international human rights and humanitarian law and standards, and provisions on penal accountability, civil liability of individuals and corporate actors, as well as effective remedies to victims.
The report also indicates that, although several national laws provide for the establishment of a government authority responsible for granting licenses to PSCs, very few of the States reviewed require or grant power to the said authority to keep a centralized register of licenses that have been awarded. States’ obligation to keep such a register may assist in maintaining oversight of PSC operations and the conduct of PSC personnel.
In its recommendations, the Working Group reiterates the need for effective regulation of the activities of PMSCs and invites all Member States to facilitate its study of national legislation, which aims to identify trends and good practices and to develop guidance for Member States in exercising effective oversight of the activities of PMSCs.