Private Security Providers (PSPs), are legalised corporate entities that have a distinct legal status and provide a wide range of security services. They can supply everything from transport, logistics, fleet maintenance and management, military and police training, demining, intelligence, risk analysis, armed and unarmed protective services of personnel and assets, anti-piracy measures, border protection, drone operations, security control centres communications, CCTV monitoring, consulting and advice to local forces, amongst others.
The status of PSPs personnel, in an armed conflict, is defined by IHL, in relation to its nature of operations, circumstances, roles, activities and functions, in which they are engaged. Unless they are incorporated in the armed forces of a State or have combat functions for an organized armed group belonging to a party in the conflict, personnel of PSPs are classified as civilians. To that extent:
-They may not be targeted;
-They are protected against attack, unless during that time, they take a direct part in hostilities.
If, however, PSP personnel, carry out acts that amount to taking a direct part in hostilities:
-They lose protection from attack during such participation;
-If captured, they can be tried for merely participating in hostilities, even if they have not committed any violations of IHL.
For example, guarding military bases against attacks from the opposing party, gathering tactical military intelligence, or operating weapons systems in a combat operation, these are all examples of direct participation in hostilities in which PSPs personnel may be involved.
If they are operating in situations of armed conflict, PSPs personnel must respect IHL and may be held criminally responsible for any violations they may commit. This holds true whether they are hired by States, international organizations or by private companies.
A number of international initiatives have been undertaken in an effort to develop, clarify and define international legal standards, to regulate the activities of PSPs, ensuring compliance to the IHL and human rights law.
For PSPs, the below listed measures, prior to and during deployment, are essential to ensuring that their personnel, respect IHL:
-Vetting procedures for the hiring of personnel;
-Training, in the IHL;
-Setting Standard-Operating-Procedures (SOPs), Rules-for-the Use-of-Force (RuF), Rules-of-Engagement (RoE) that comply with the IHL;
-Code of Conduct.
Governments and States cannot absolve themselves of their obligations under IHL, when engaging with PSPs. They are responsible for ensuring that relevant standards and the law are respected. Should personnel of PSPs commit violations of the IHL, the State may be held responsible if the violation(s) can be attributed to it as a matter of the IHL and especially if the PSPs are activing under instructions or control of the State authorities.
They must ensure that monitoring mechanisms are in place to hold accountable personnel of PSPs, suspected of violating the IHL.
They must also ensure that personnel of PSPs respect the IHL. Measures for achieving this:
-Requiring that personnel of PSPs to be properly trained in international humanitarian law;
-Requiring that the PSPs RuF and/or RoE and standard operating procedures comply with the IHL.
Governments and States have a responsibility to respect and ensure respect of the IHL by the personnel of PSPs. Those, in whose territory PSPs are incorporated or operating, can control their behaviour through the applicable national law.
By establishing a licensing and regulatory system, they can exercise control, oversight and monitoring of PSPs activities and operations. Key elements of a possible national regulatory framework, could include which services may or may not be carried out by PSPs and their personnel. Here, the question of whether a particular service could cause PSPs personnel to become involved in direct participation of hostilities, should be taken into account when conducting a human rights compliance risk assessment.
They could impose certain criteria towards the issue of a license to PSPs. Also, they could also make approval of every contract, depending on the activities and the situation in which PSPs may operate.
Other stakeholders, in conflict affected areas, such as Non-Governmental/Humanitarian Organizations, with the task of providing humanitarian assistance, may as well be relying on the support and services of PSPs, as part of their operations. These humanitarian organizations, should be able to conduct human rights due diligence on their PSPs, in order to minimize and mitigate the risks to themselves and the civilians that they are there to assist.
To mitigate these risks, humanitarian organizations, in the process of engaging with PSPs, should ensure that:
-Any decision they take to contract private security providers is in line with humanitarian principles.
-Human Rights due diligence is systematically included in new and existing procurement processes for selecting private security providers, including in request for proposals and tender documents.
-The private security providers have a proven track record of respect for internationally recognised standards and have integrated these into their policies, procedures and operations.
-Their contracting policies and guidance and Human Rights Due Diligence requirements are established, disseminated and applied systematically across the organisation.
On the other hand, donors to humanitarian organizations, to engage with PSPs, should ensure that:
-A duty of care is in place, when engaging with PSPs, by the humanitarian organisations they support.
-The humanitarian organisations they support, select PSPs on the basis of internationally recognised standards.
-The humanitarian organisations they support, systematically include in their budgets costs, sufficient to meet the requirements of contracting responsible, reputable and reliable PSPs.
Any suspicion of violations or allegations by PSPs, engaged by humanitarian organizations, not operating in accordance with international standards, the IHL or international human rights, should be collected, documented, communicated and reported to the local authorities and relevant international organizations.