Working Group on Use of Mercenaries: the Increasing Number of Private Military and Security Companies Operating in the Humanitarian Space Exacerbates the Risk of Violations of Human Rights and International Humanitarian Law

Morning, 21 September 2021

Presentation of Report

JELENA APARAC, Chairperson-Rapporteur of the United Nations Working Group on the use of mercenaries as a means of violating human rights and impeding the right of peoples to self-determination, presented the thematic report of the Working Group which highlighted the role of private military and security companies in humanitarian action. She stated that an increasing number of private military and security companies were operating in the humanitarian space, which exacerbated the risk of violations of human rights and international humanitarian law, and undermined humanitarian principles. The growing reliance on private military and security companies by humanitarian actors had come with significant challenges with regards to the 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 commercialisation of humanitarian aid, raised concerns over their impacts on the humanitarian principles of impartiality, neutrality and operational independence.

Ms. Aparac expressed the concern of the Working Group 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 could afford it. It was necessary to critically reflect on the types of situations and spaces in which private military and security companies operated, and the array of human rights and international humanitarian law violations that could and did arise. When armed private security personnel operated closely alongside military personnel, such as State armies or United Nations peace operations, and they engaged in the use of force, this could compromise the principle of distinction between civilian and military persons and objects, creating confusion about legitimate targets. The report analysed the fundamental lack of transparency around these operations, most notably in the relationships between clients and service providers. She detailed that such reflections should be taken into consideration in addressing gaps in the regulatory framework governing the conduct of private military and security bodies, adding that the Working Group called 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. She specified that robust State regulation and oversight over private military and security companies through domestic legislation was also essential.

The Working Group encouraged a multi-dimensional response to the regulation of private military and security companies. Only a comprehensive approach adopted at State and international levels could effectively regulate these private companies and ensure accountability. The Working Group recommended moving beyond self-regulatory regimes and called for a binding international regulatory framework governing the conduct of private military and security companies.

Discussion

Speakers reiterated their concerns about the activities of private military and security companies, which acted in a sort of legal vacuum and with impunity. It was necessary for the community of nations to have a legally binding international instrument for the regulation of private military and security companies, in accordance with international law. International humanitarian law and humanitarian principles governed humanitarian assistance, but they did not mention private military and security actors. States' obligations to protect and respect human rights extended to protection against human rights abuses by third parties, including private military and security companies. Other speakers noted with increasing concern that the Working Group continued to receive reports of the involvement of private military and security companies in human rights violations, including enforced disappearances, summary executions, indiscriminate killings, and sexual exploitation and abuse. They also noted with concern the serious reputational implications for humanitarian actors using private military and security companies and the risks they ran if they worked together. Risks included humanitarian actors and their premises being perceived as legitimate military targets, dragging them into a conflict, if force was used by the personnel of private military and security companies, undermining the principle of neutrality and giving the impression that humanitarian actors were involved in a conflict.

Some speakers said that the commercialisation of humanitarian aid and the use of private military and security services in humanitarian action was on the rise and may impact humanitarian operations, their principles, and the potential for abuses of human rights and international humanitarian law. This posed a concerning challenge to the concept of security both as a public good and as a State function. Other speakers said that the use of private military and security companies in the humanitarian sphere was a highly complex issue, not only because of existing legal loopholes, but also because of the reluctance of a number of actors, including developed States, to address the human rights impact of the actions of such companies. As a result, they said that they would submit a draft resolution on this matter. Some speakers were concerned about the way that private military and security companies were engaged in providing responses to health crises, including in the contexts of the Ebola outbreak and the COVID-19 pandemic, risking the securitisation of the health sector in relation to reports of human rights abuses, including the treatment of marginalised groups in detention. One speaker recalled that the Working Group's work would prove to be more effective if its scope was focused more clearly on mercenaries and mercenaries-related activities, which were clearly defined under international humanitarian law, and regretted that the report contained unsubstantiated accusations.