Preliminary observations of the Working Group on the use of mercenaries at the conclusion of its visit to Switzerland (13-17 May 2019)

French

Bern, 17 May 2019

Today, a delegation of the United Nations 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 concluded a five-day official visit to Switzerland (13-17 May 2019). 

Meetings with Government, civil society organisations and companies

At the outset, the Working Group wishes to thank the Government of Switzerland for honouring its standing invitation to the Special Procedures of the Human Rights Council by responding favourably to the Working Group’s request for a country visit, and for its excellent cooperation before and during the visit. We would like to express particular appreciation to the Private Security Services Section of the Federal Department of Foreign Affairs for coordinating our visit. 

Over the past week, the three-member delegation held meetings in Bern, Zurich, Geneva and Neuchatel. We met officials representing different divisions within the Federal Department of Foreign Affairs, notably: the Directorate of Political Affairs, including the Private Security Services Section and the Human Rights Policy Section; the Directorate of International Law; and the Competence Centre for Contracts and Procurement and Crisis Management Centre. At the federal level, we also met the Armed Forces Attorney General, Federal Prosecutors with the Office of the Attorney General, and representatives of the Federal Office of Justice, as well as the State Secretariat for Migration. The Working Group is grateful to the State Secretariat for Migration for facilitating a visit to the Federal Asylum Centre of Kappelen in the Canton of Bern. We also appreciated the opportunity to discuss our preliminary findings with the Deputy Secretary of State of the Federal Department of Foreign Affairs earlier today. 

At the cantonal level, we met the Conference of Cantonal Departments of Justice and Police as well as senior representatives of the Canton of Zurich, in particular the Departments of Security and of Justice and Home Affairs, and the Cantonal Police, and with the Justice and Public Security Committee in Zurich’s Cantonal Parliament.  We also met the Department of Security, Employment and Health of the Canton of Geneva and the Cantonal Police of Geneva. Finally, we met the Commission of the Concordat on Private Security Companies of the French-speaking Cantons in Neuchatel. 
Our meetings with government officials at the federal and cantonal levels were characterised by open and frank exchanges, for which the delegation is appreciative.  

The delegation also met a member of the National Council; representatives of non-governmental organisations, trade unions, and an industry association; as well as individuals from the private sector, including representatives of companies providing private military and/or security services and companies using such services, notably a multinational company operating in the extractive sector, and representatives of multi-stakeholder initiative/s on private military and security companies. We are very grateful to all those who met with us for their time and for the rich and varied discussions.  
The delegation would also like to thank all those who shared information during the preparation phase, and is particularly grateful to the National Commission on the Prevention of Torture in this regard. 

Focus of the visit

During its visit, the delegation sought to assess, in a spirit of dialogue and cooperation, the measures in place to address challenges posed by mercenarism and mercenary related activities and their impact on human rights. The delegation further examined international initiatives on private military and security companies in which Switzerland has played an instrumental role, as well as the regulatory framework in place for private military and security companies operating in Switzerland and abroad. Finally, the delegation considered broader developments in the context of the implementation of the United Nations Guiding Principles on Business and Human Rights of relevance to the private military and security industry. 

Preliminary observations

This end of mission statement sets out the preliminary findings from our visit. It will be followed by a full report that fleshes out these elements and provides constructive conclusions and recommendations and that will be presented to the Human Rights Council in September 2020.  

Mercenaries and mercenary related activities

Switzerland is known for its historic tradition, dating back to the 14th century, of men serving in foreign armies as mercenaries. What was once a widely accepted practice was abandoned in the 19th century with the institutionalization of neutrality as a principle of Swiss foreign policy which remains in place today. Presently, the sole exception is the Pontifical Swiss Guard, which is tasked with protecting the Pope and his official palace in the Vatican City.  

In order to give effect to the principle of neutrality and in the interest of preserving the Swiss defensive capacity, Article 94 of the Military Criminal Code prohibits all Swiss citizens from serving in a foreign army or military group, and recruiting or facilitating the recruitment of Swiss citizens into a foreign military service, whatever their motivation might be. The only exception to this rule is if the Federal Council grants authorisation. The Working Group understands that only a handful of prosecutions occur each year under this provision, and most recently has been used to prosecute individuals who returned to Switzerland after joining the army of another State as well as those fighting alongside non-State armed groups regardless of their affiliation. Nevertheless, the Military Criminal Code as well as other related legal instruments stop short of prohibiting mercenarism as defined in international law. Switzerland is not a party to the International Convention against the Recruitment, Use, Financing and Training of Mercenaries. 

While the delegation did not focus on the issue of foreign fighters during this visit, we are aware of the Federal Act on the Proscription of the Groups ‘Al-Qaeda’ and ‘Islamic State’ and Associated Organisations of 2014 that also addresses mercenary-related activities by prohibiting the joining and supporting of such groups. The Working Group sees the need to ensure complementarity between instruments that touch on mercenarism and mercenary-related activities and in their implementation, and invites Switzerland to consider how best to align some of these provisions with the international normative framework on mercenaries.

International initiatives regarding private military and security companies 

In the wake of widespread condemnation of serious human rights violations committed by private military and security companies in Iraq and Afghanistan, Switzerland began to seriously consider the need for regulation of private military and security companies operating in conflict settings. Since 2006, Switzerland has shown commendable leadership in advancing international regulatory initiatives on private military and security companies. In particular, Switzerland has played a critical role in the development of the two main international initiatives aimed at applying or raising standards for private military and security companies, namely the Montreux Document¹ and the International Code of Conduct for Private Security Service Providers; and has been a long-standing member of the Voluntary Principles on Security and Human Rights Initiative.

The Montreux Document is the result of an international process launched by the Government of Switzerland and the International Committee of the Red Cross. It is an inter-governmental document that reaffirms the existing obligations of States, under international law, in particular international humanitarian law and international human rights law, relating to the activities of private military and security companies operating in contexts of armed conflicts. Participating States support the Montreux Document on a voluntary basis as a show of commitment to the relevant international legal obligations referenced therein. The Montreux Document also sets out good practices for States related to operations of private military and security companies during armed conflict, which have increasingly been seen as relevant also for non-conflict settings. Since its adoption in 2008, the so-called ‘Swiss initiative’ has grown from 17 participating States, including Switzerland, to 55 States and three international organisations. In 2014, the Montreux Document Forum was launched to provide a venue for informal consultation among Montreux Document participants, and Switzerland seeks to bring more States and international organisations on board and to strengthen dialogue on lessons learned, good practices and challenges around regulation of this sector.  

It is also thanks to a Swiss-led multi-stakeholder initiative that the International Code of Conduct for Private Security Service Providers (the Code) came into being. The Code seeks to articulate human rights responsibilities of private security companies and to set out good governance principles and standards, based on international human rights and humanitarian laws, for the responsible provision of private security services, when operating in complex environments. The Code was finalized in November 2010, containing a provision to establish an independent mechanism for governance and oversight. In 2013, the International Code of Conduct Association (ICOCA) was set up as a Swiss non-profit association to fulfil this role with a tripartite Board composed of government, civil society and industry representatives. As of April 2019, seven governments, 85 private security companies, 32 civil society organisations and 33 observers participate in ICOCA. 

The delegation recognises the substantial progress that has been made, with Swiss support, in terms of the adoption of the Code, the establishment of ICOCA, the development of its complaints mechanism and of the company certification process. This model has enormous potential and the delegation encourages Switzerland to help to lead ICOCA towards its next milestone by making its complaints mechanism more robust and exploring ways to strengthen monitoring of compliance with the Code and surfacing abuses in ways that will ensure the protection of victims and witnesses as well as offering victims access to an effective remedy in line with international human rights standards. In addition, the Working Group urges Switzerland to support any proposals that will enable small- and medium-sized private security providers to become members of ICOCA and thereby improve their human rights and corporate governance standards. 

Furthermore, in 2011, Switzerland became a Participating Government in the Voluntary Principles on Security and Human Rights, elaborated in 2000 as “a set of principles designed to guide companies in the extractive sector in maintaining the safety and security of their operations within an operating framework that encourages respect for human rights”. The delegation heard from several stakeholders about the practical framework that the Voluntary Principles provide and the useful tools that have been developed to seek to give companies the know-how of how to implement them, but we also heard that in reality implementation of these principles on the ground is lacking. 

The Working Group encourages Switzerland to use its one-year term as Chair of the Voluntary Principles, assumed in March 2019, to outline and publicise its strategic vision, as described to the Working Group, for concretising the Voluntary Principles on the ground. With the 20-year anniversary of the Voluntary Principles next year, it is important for Switzerland to lead members of the Voluntary Principles to turn these principles into an operational reality that makes a difference in the lives of those communities living near extractive operations around the world.

The Working Group strongly supports the three aforementioned initiatives, spearheaded by Switzerland, and recognises their positive contribution towards greater awareness of the responsibilities of private military and security companies to respect human rights, prevent abuses by their personnel, and ensure access to an effective remedy in the event of such abuses. 

Overall, the Working Group welcomes Switzerland’s ongoing leadership in international regulatory initiatives for private military and security companies. This year, Switzerland holds the role of Chair or co-Chair of all three of the above-mentioned initiatives. This provides an excellent opportunity to provide strategic leadership to push for further raising standards and strengthening existing initiatives. It also makes Switzerland particularly well-placed to substantively contribute to the Open-ended intergovernmental working group to elaborate the content of an international regulatory framework, without prejudging the nature thereof, relating to the activities of private military and security companies, pursuant to Human Rights Council resolution 36/11, and which will meet next week in Geneva.

Private military and security companies operating abroad 

On 1 September 2015, the Federal Act on Private Security Services Provided Abroad of 27 September 2013 and its accompanying ordinance entered into force. Switzerland’s reflections on better regulation for private military and security companies operating abroad was initiated back in 2005. Two reports were commissioned by the Federal Council to scope the issue, the first in 2005 and the second in 2010. The latter followed media reports alleging that a large private military and security company that had moved its headquarters to Switzerland was providing services abroad that were not in conformity with Swiss constitutional principles or political goals, generating a sense of urgency to provide legislative grounds to restrict the kinds of services that could be provided by Swiss companies. In adopting this Act, Switzerland also demonstrated good faith in modelling good regulatory practices by enacting national legislation as promoted by the Montreux Document. 

The Act contains many positive elements. Compliance with international law, and in particular human rights and international humanitarian law, is one of the Act’s three objectives (Article 1) against which activities are assessed on a case-by-case basis. Private security services that contradict these aims are prohibited. The Act provides for a declaratory procedure whereby legal persons, natural persons and business associations that provide private security services abroad from Switzerland are required to declare all such activities to a Federal authority that reviews them to ascertain whether they are in compliance with the Act. In addition, the Act applies to both those that establish, base, operate or manage such a private security company in Switzerland and those that exercise control over such a company from Switzerland. This wide scope of application, coupled with the focus on services and activities rather than self-identification as a private security company, provides a means to ensure that a maximum number of potentially problematic activities falls under the law. Hence, it recognises that such services are provided by a wide variety of companies and sectors; in Switzerland’s case particularly the intelligence and defence industries that, for example, provide training or maintenance of equipment. 

Importantly, the Act includes several additional categorical obligations, specifically a prohibition on direct participation in hostilities (Article 8) and on the provision of security services abroad where it may be assumed that they will be utilised by the recipient/s in the commission of serious human rights violations (Article 9). The law also covers the use by Federal authorities of private security companies which must only contract ICOCA member companies (Section 7).

To implement the law, the Federal authorities have gone to great lengths to raise awareness with companies providing such services and to prepare material to facilitate the work of companies in abiding by their obligations under the law. This includes detailed guidelines and a document setting out training requirements according to the Act, and providing clarification regarding the obligation on companies to declare the training that their staff have received in international human rights and humanitarian laws, particularly what should be understood as sufficient training in this domain.

Almost four years after the adoption of the Act, implementation has its challenges. The Act is based on the premise that companies will declare relevant activities, with the risk that some companies may not do so. Certain classic activities, such as protection of persons and guarding or surveillance of property, are covered by the Act when carried out in ‘complex environments’, with a cumulative definition of ‘complex environments’ that arguably sets the threshold too high. Designed as a declaratory procedure only, the Act does not contain a monitoring mechanism and there are therefore limited means for detecting undeclared activities or ensuring that companies are complying with its provisions. There are also logistical challenges to, for example, Swiss Embassies operating in countries with little or no ICOCA membership among security providers and where qualified security providers can therefore be hard to find. Finally, the Working Group deems that with limited human resources within the competent authority for implementing the Act, capacity is a considerable challenge.  

The Working Group commends Switzerland for taking the initiative to adopt the Federal Act, and stands ready to assist in reflecting on the challenges presented above. 

Private military and security companies in Switzerland 

Cantonal autonomy and decentralization are fundamental parts of the Swiss political and legal landscape; understanding this is crucial to grasping the security regulatory framework. The 26 cantons of the Confederation have competence over security matters. Increasingly, private security providers are used by both public and private clients to deliver a broad range of services. Approximately 23,000 private security personnel working in some 800 companies outnumber the 18,600 Swiss police officers thus recalibrating the security landscape. The private security market appears to be dominated by a handful of large companies operating alongside a myriad of small- and medium-sized enterprises. While no serious human rights abuses by private security providers have been brought to the attention of the Working Group, the sensitive nature of some of their tasks as well as their significant and increasing presence raise several questions. 

A wide range of public security tasks is fulfilled by private security providers. Several reasons were given for this, such as an increasing demand for security services linked to a rise in large public events and the development of infrastructure, as well as budgetary pressures that push public authorities to prioritize the use of police for core security tasks, potentially involving the use of force, and the delegation of tasks perceived as minor and non-sensitive to private security providers. According to information shared with the Working Group, private security providers fulfil tasks related to ensuring security inside and outside facilities for asylum seekers, security services in places of detention, transportation of prisoners, maintaining peace and order, patrolling public spaces, traffic control, issuance of parking tickets, guarding of buildings, and securing large public events, notably sports events. These tasks seem to vary from one canton to another. 

The Working Group was surprised to find that security tasks that can be delegated by public authorities to private contractors are not clearly defined in the existing normative framework. Rather, the delineation of responsibilities between private and public security appears to be based on the concept of the state monopoly on the use of force as well as on recent jurisprudence of the Federal Supreme Court which prohibits private security personnel from requesting identification of citizens in public spaces. Unlike the police, private security personnel have no special prerogative to use force. As ordinary citizens, the Swiss Criminal Code restricts and limits their right to use force to legitimate self-defence, including the right to defend property, persons under their protection, the legitimate defence of others and necessity. They can also bear arms as any other citizen, in line with the law. The Working Group considers that the distinction between security tasks to be exclusively within the responsibility of public security and those that can be delegated to contractors should be more clearly anchored in the law.

In particular, the Working Group had the opportunity to obtain a better understanding on the use of private security in Federal asylum centres, a role that brings private security into contact with a vulnerable segment of the population and therefore carries a potential human rights risk. The Working Group was satisfied to find that decision-making processes affecting residents of the Federal asylum centres, such as the security regimes implemented or sanctions taken against residents, were not delegated to private security personnel but remained in the hands of public authorities. Equally, there are limitations on the use of force and private security personnel carry only minimal equipment in case of aggressive and harmful behaviour. The presence of a female security guard at all times in the asylum centre is a positive element to ensure that security rules are implemented taking into consideration the specific needs of women and children. However, this may be challenging to achieve in centres accommodating larger numbers of women and families if only one female security guard is present, as appears to be currently the case, at least in some centres. 

As regards qualifications of private security personnel working in Federal asylum centres, the Working Group understands that some vetting and training procedures are in place. Nonetheless, the content, time of delivery and monitoring of specific training provided to private security personnel should be defined in more concrete terms. The new tender for private security services in Federal asylum centres to be published later this month presents an opportunity to integrate stricter requirements in this respect as well as in relation to quality standards, including human rights standards, into contracts with private security providers.

Considering the sensitive nature of some of the tasks performed by private security providers, the Working Group is concerned over the lack of a consistent legal framework for their operations, especially in relation to vetting, training and oversight. Whilst recognizing the Cantonal prerogatives in terms of security provision, the Working Group finds that the current regulatory system does not adequately ensure minimal standards for private security companies and their personnel. Indeed, several stakeholders raised concerns that some public clients may decide to award private security contracts to companies with inadequate standards as long as they offer the most competitive price. This is in stark contrast with Federal procurement rules and model contracts developed for public authorities to comply with, for example, the Federal Act on Private Security Services Abroad.

Paradoxically, efforts to develop and adopt consistent legal rules for private security companies operating in Switzerland predate the discussions culminating in the Federal Act on Private Security Services Abroad. An inter-Cantonal agreement, the Concordat on Private Security Companies, was adopted by the six Romandie cantons in 1996, establishing uniform rules for the operations of such entities which need to obtain a permit for the company and for their employees from the competent Cantonal authorities. These harmonised regulations, to which all participating Cantons must adhere, enables them to retain their competence over security. The value of this system has been recognized by many stakeholders. 

A draft ‘Concordat’ for the remaining Cantons was developed in 2010 but never entered into force after being rejected by several Cantons, including those where a large number of private security companies are registered. The responsibility to verify requirements for private security personnel was given to their employers instead of public authorities. The creation of a heavy administrative burden, for both Cantonal authorities as well as companies, especially smaller ones, was given as one of the reasons for the rejection of the draft ‘Concordat’ in some Cantons. 

Following the rejection of the draft ‘Concordat’, some Cantons opted to develop their own legal framework for private security companies. However, in several Cantons, no specific legal basis for the operations of such companies exists. In this context, certain constituencies are pushing for Federal legislation that would establish common minimum standards applicable to private security providers across the entire country. A proposal to give the competence to develop such standards to the Federal government is currently being considered by the Federal Parliament, and has the support of the Federal Council. 

The Working Group sees a clear need to ensure consistent regulation of private security companies for all Cantons. It also recognises the risks involved in doing this by way of Federal legislation, in particular, that in order to gain the agreement of all parties, a compromise text may be adopted that in fact introduces lower standards to those already in place in the Romandie Cantons under its ‘Concordat’. Whatever solution Switzerland opts for, the Working Group urges it to ensure that, at a minimum, current standards under the existing Concordat are maintained. We further recommend that the minimum standards should contain the following essential elements: clear delineation of competencies of police and private security respectively; thorough background checks conducted by police on all private security employees going beyond simple checks on criminal records; standardised training; to be distinguished by uniform and insignia; and greater oversight function for the State on actions by private security. 

Finally, in addition to legal instruments, the Working Group would like to highlight the role of other mechanisms to uphold and improve standards in the private security industry. The Collective Work Agreement for the private security services sector regulates working conditions and is mandatory for all private security companies operating in Switzerland that has more than ten employees; and it includes an obligation for companies to provide their employees with basic training. Industry associations represent another avenue for standard-setting, for example through the development of complaints procedures or self-regulatory mechanisms. We encourage industry associations and companies to consider developing such tools not only to ensure high professional standards integrating human rights elements but also to maintain competitiveness in a sector where good conduct and reputation play an important role.

Private military and security companies in the context of the Business and Human Rights framework

During its visit, the delegation considered broader Business and Human Rights initiatives of relevance to the private military and security industry, notably the National Action Plan on Business and Human Rights and the Swiss Responsible Business Initiative. 

Switzerland is currently in the process of revising its National Action Plan on Business and Human Rights with a view to producing an updated plan for 2020-2023. The Working Group welcomes the fact that the current National Action Plan includes several references to private security. This said, the National Action Plan primarily focuses on information about initiatives undertaken, outreach, legislative developments (notably the Federal Act on Private Security Services Provided Abroad), and leadership and involvement in international multi-stakeholder initiatives such as ICOCA and the Voluntary Principles. While these are important achievements, the approach taken looks backwards rather than pointing forwards. The Working Group urges Switzerland to adopt a more dynamic approach to the upcoming revision of its National Action Plan by delineating clear proposals for strategic plans in relation to private security providers.

To that end, the Working Group recommends that Switzerland take the opportunity in the new National Action Plan to outline its strategic vision for harmonising domestic security regulation across Switzerland with a view to improving standards among private security providers particularly in relation to vetting, training and monitoring, as well as contracting, and to demarcate clearly the competencies and responsibilities of both the police and private security providers, in line with international human rights standards. Recommendations for action raised earlier in this statement may also provide ideas for inclusion in the revised Plan.

The Swiss Responsible Business Initiative was launched after a coalition of Swiss civil society organizations managed to mobilise well over the required 120,000 valid signatures to trigger a citizen initiative that seeks to introduce a partial amendment to the Constitution to include mandatory human rights due diligence. The Working Group strongly supports any initiative that would strengthen human rights due diligence and supply chain liability in Switzerland, and calls on Switzerland to seize this infrequent opportunity to enshrine these principles in the Constitution by opting for the most comprehensive and far-reaching text possible. 

Conclusion

To conclude, in recent years Switzerland has played a seminal role in the creation of an international regulatory framework for private military and security companies, and has lead the way in enacting national legislation to regulate companies providing security services abroad. It should not be complacent about the significant progress made so far, but continue to exercise leadership by pushing forward processes to strengthen existing multi-stakeholder mechanisms at the international level. Further, it should continue to explore creative ways to overcome the challenges associated with the Federal Act on Private Security Services provided Abroad. Regulation for private security provision within its national borders is lagging behind, and given the increasing use of private security should be a priority to ensure that companies operating inside Switzerland are bound by higher standards.

__________