Report on national laws and regulations relating to PMSCs of selected countries of the Commonwealth of Independent States, the Asia and Pacific region, and in North America (Part IV of a Global Study)
Working Group on the use of mercenaries
To the 33th 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 six countries of the Commonwealth of Independent States (Azerbaijan, Kazakhstan, Kyrgyzstan, the Republic of Moldova, Tajikistan and Uzbekistan), four countries in the Asia and Pacific region (Australia, New Zealand, Nauru and Papua New Guinea) and the United States of America in North America in North America.
The report analyses national laws on PMSCs on the basis of the following elements: (a) scope of the legislation; (b) licensing, authorization and registration; (c) selection and training of personnel; (d) permitted and prohibited activities; (e) rules on the acquisition of weapons; (f) use of force and firearms; (g) accountability for violations and remedies for victims; and (h) ratification of the International Convention against the Recruitment, Use, Financing and Training of Mercenaries.
The research reveals that while each of the six countries that were part of the former Soviet Union has legislation that directly or indirectly regulates private security companies, each country approaches the regulation of those companies differently. While there is a general regulatory emphasis on formal and procedural conditions, there is little provision for substantive requirements, with no reference to human rights or any international standards. Regarding the accountability of PMSCs and their personnel, the reviewed legislation lacks specific rules on inspections and monitoring mechanisms, with no single publicly accountable body dedicated to the regulation and control of PMSCs activities.
Concerning the review of Australia, Nauru, New Zealand, Papua New Guinea and the United States of America, the study reveals that each country approaches the privatization of the security industry differently, creating regulatory gaps in some respects. The analyzed countries focus on the protection provided to persons and goods in the domestic sphere and the majority of the countries do not specifically address private military companies, the issue of military and security services provided abroad or the extraterritorial applicability of the legislation. Only two out of the five countries prohibit mercenarism in their national legislation. The analysis also shows that only one of the five countries analyzed has legislation that includes some reference to international humanitarian law in the selection criteria or in the training materials.
In the recommendations, the Working Group calls on those countries that are parties to the international legal instruments on mercenaries to incorporate the international standards into national legislation and to introduce relevant enforcement and accountability mechanisms. The Working Group also encourages signatory countries to ratify, and the remaining States to become parties, to the relevant instruments.
On 21 July 2016, the Working Group organized another panel event in New York focusing on the "Privatization of war: impact on human rights". It addressed the main questions: i) the effect of privatization of war on the right of peoples to self-determination and how the latter could be strengthened; ii) the effect of privatization of war on accountability for human rights and IHL violations, and on access to remedy for victims, and iii) options for regulation to ensure accountability for PMSCs activity and access to redress to victims.