S1E4 – In Episode 4 we talk to Dr Sorcha MacLeod, Associate Professor and Marie Skłodowska Curie Individual Fellow in the Centre for Private Governance (CEPRI) in the Faculty of Law, University of Copenhagen and an independent human rights expert on the United Nations Working Group on Mercenaries and the UN Intergovernmental Working Group on private military and security companies. We ask Dr. MacLeod how private security companies and their role in the COVID-19 pandemic have impacted human rights, why we should be concerned about the increasing use of mercenaries around the world, and what other issues may be on the horizon in the private security space that have implications for human rights.
This podcast was originally published July 13, 2020
Hello, my name is Chris Galvin with the International Code of Conduct Association, otherwise known as ICoCA. I’m pleased to introduce the fourth episode in our podcast series, Future Security Trends: Implications for Human Rights. Today’s episode is Human Rights and Private Security Adapting to the Future. I’m pleased to be joined today by Dr. Sorcha MacLeod, Marie Curie Fellow and Associate Professor in the Faculty of Law at the University of Copenhagen in the Centre for Private Governance and a member of the UN Working Group on the Use of Mercenaries. So could you tell us about your research interests and what it was that drew you to the field of security and human rights?
Thanks for inviting me to talk about this today. As you already mentioned, I’m an academic and the focus of my research is private military and security companies and human rights in a general sense. But as a Marie Curie fellow, I have a project which is looking specifically at how we can ensure that private security providers comply with human rights standards and are held accountable for human rights violations if and when they occur. And I am specifically interested on the impacts on marginalized groups and marginalized groups could include women, children, the LGBT community, disabled people, or even civilians in armed conflicts.
In terms of what drew me to the field of security and human rights, I think I ended up working in the field as a result of serendipity, more than more than anything rather than design. I have always had an interest in human rights and I’ve always had an interest in the wider field of business and human rights and I did an LLM at the University of Dundee many years ago on International Natural Resources law and was very interested in the interaction between natural resource companies, mining companies, oil companies and human rights. And then when I did my PhD at the University of Glasgow, I decided to focus on business and human rights more generally. I then came to the security sector via a project, which was an EU funded FP7 project back in I think it was 2008 that it started and they wanted somebody who knew about business and human rights, sorry to come on board with this project that was looking at private military and security companies from an international law perspective. And because I was involved with this project, I then started getting invitations to things like the Wilton Park Conference and some of the early meetings around the development of the Montreux documents, and then subsequently was invited to participate in the creation of the International Code of Conduct. And I’ve stayed working in the field of of security and human rights ever since.
So Sorcha, you’ve been appointed as a human rights expert on the United Nations Working Group on Mercenaries and the UN Intergovernmental Working Group on private military and security companies. So, could you tell us about the work of these groups?
Absolutely. I am an independent human rights expert on the UN Working Group on the use of mercenaries, and the working group is part of what’s known as the special procedures of the Human Rights Council. And I and four colleagues are appointed by the Human Rights Council to look at human rights issues around mercenaries and mercenary related activities, as well as private military and security companies. We are not employed by the UN. Our independence is extremely important. We report to both the Human Rights Council and to the United Nations General Assembly.
So, what do we do on a on a practical basis? Well, we prepare thematic reports and studies. So, for example, last year we produced a report on the gendered human rights impacts of private military and security companies. We also produced a report on private military and security companies and the natural resource sector. We conduct expert consultations and outreach events. We cooperate with other special procedures, mandate holders. So, for example, the working group on business and human rights, but also the other mandate holders. We conduct country visits within the context of our mandate and we can receive allegation, letters alleging complaints in the context of our mandate. And we can issue what are known as communications to states, but also to non-state actors. So, we can we can issue letters to companies outlining the allegations that have been made and asking them to respond to the allegations.
We also contribute to different international organizations and initiatives. So we have a good working relationship with ICoCA, for example, but we also contribute to things like the open ended intergovernmental working group on private military and security companies.
Which brings me to the second, the second initiative that you mentioned. So, while with the UN Working Group on the use of mercenaries, I have been appointed for a six-year period, with the UN Intergovernmental Working Group it’s a different UN mechanism. It’s created by states for states and on occasion they invite different experts to talk about different aspects of private military and security companies. In this case, there have been two iterations of the Intergovernmental Working Group. The first one was specifically focusing on creating a treaty to govern the activities of private military and security companies. But the second iteration of the the working group is looking at a variety of different regulatory options for governing and regulating the industry. Now, that in itself has been controversial. And the working group’s position, my working group’s position working group on the use of mercenaries, we take the view that there should be a treaty in in this area, but that’s not something that has been decided yet. And in some respects, the Intergovernmental Working Group feels a little bit like Groundhog Day. That we are back to talking about some of the basics that we were talking about 10-12 years ago when we were creating the Montreux document, when we were creating the International code of conduct and think we’re a very long way away from getting any sort of international regulatory framework in place for PMSCs.
Now, you’ve used the term PMSCs, and private military and security companies are often lumped together. But in a previous podcast, Richard Wild talked about the rise of non-state actors and the importance of distinguishing between private security companies on one hand and mercenaries on the other. The use of mercenaries appears to be on the rise in some African states. There was a mercenary group involved in a failed coup in Venezuela recently. So, should we be concerned about this development and what are the implications of this for an organization like ICoCA?
The terminology in this area is something that gives rise to a lot of discussion. It’s very controversial. I use the term private military and security companies because that is a term that is explicitly included within my UN mandate. So that’s one of the reasons that I use it. I think focusing on the name of actors and non-state actors is not really terribly helpful. Whether you call them private military companies, private military security companies, private security providers, all it does is create a bit of a fog, a bit of a haze around the industry. And what actually matters are the services that the these commercial actors are providing. They are all commercial actors and I think it’s helpful to think about them as being on a spectrum. And I know that the industry is very much seeking to distance itself from the mercenaries, the actors that are providing combat services, that are providing frontline services in armed conflicts. And that’s definitely understandable. But it doesn’t really help us when it comes to trying to regulate the industry. There’s definitely been a rise in the use of, if we can call them, the classic mercenary, the mercenaries that are actively providing combat services and actively being involved in the frontline of armed conflicts. To the extent that Equatorial Guinea, in its temporary presidency of the UN Security Council in February 2019, brought it to the table, brought it to international attention to say this is this is an ongoing situation. These mercenaries never went away and actually they are increasing. And as a working group, we have looked at situations in many countries in Africa, Central African Republic, for example, where we definitely see that commercial actors are being involved in combat activities. And so, what we call them doesn’t really matter. If we look at the regulatory framework, even the regulatory frameworks can’t agree on the terminology that we should use. The Montreux document, for example, talks about private military and security companies, but the International Code of Conduct talks about private security providers. And that again, doesn’t help the situation and just creates more confusion. So, I think the focusing on the services, on what the companies are doing is a much more helpful way to look at the situation rather than tying ourselves in knots, trying to define what is or is not a PMC is or is not a private security company, what is or is not a private security provider. Let’s look at what they’re doing. Is what they’re doing problematic? Is it violating human rights? Is it violating international humanitarian law? That’s what we should be what we should be looking at. And the reality is, if you are a commercial security provider and you are not violating human rights and you’re not engaging in combat services in armed conflicts, then it shouldn’t be a problem for you.
Sure. Well, thank you for that. Now, pandemics were not mentioned during the November workshop, as I recall, and yet within a few months, the world was in lockdown. Private security companies were deemed an essential service in many countries, and the risk of human rights abuses involving private security was heightened in many settings. Whether that’s because security guards themselves were being put in harm’s way or because of heavy handed implementation of lockdowns in some countries. Now, does this tell us anything about taking too prescriptive an approach to future security trends and the human rights abuses that may result?
Yes, I mean history has made a bit of a fool of us, hasn’t it? Yeah, you’re absolutely right. Pandemics were not mentioned during the workshop we looked at. We talked about climate change. We talked about urbanization of warfare, a lot of other very relevant issues. But the COVID-19 caught us on the hop think there are several different concerns with COVID-19 I think you’ve alluded to one of them already, the fact that many states have put in place emergency laws around COVID-19. And there’s a danger that that the emergency legislation is being abused by states. So, for example, tracking and tracing technology that’s being utilized and where it’s being monitored and operated by the private security sector, it raises really quite serious concerns about the right to privacy and data management. And it raises questions about whether the security providers have actually been properly vetted and properly trained in using that kind of technology and understanding the human rights implications. I think there’s another concern with the emergency laws is that we’re seeing some states using emergency laws to criminalize marginalized groups and where marginalized groups are being criminalized we are seeing the likelihood of them coming into contact with the private security sector, whether that’s in in private prisons or in private privatized prisoner transport. And so, the impact of private security will potentially be more serious for those marginalized groups. The Code needs to recognize that human rights can be impacted and experienced in different ways by different groups.
I think we’re seeing a variety of other impacts of COVID-19. So, we’re seeing, for example, we’re seeing a huge increase in the demand for private security. And that brings with it concerns, again, about proper vetting and training. We’ve even seen in some countries where there are licensing systems, we’re seeing examples of situations where security personnel can get their licenses online and what sort of oversight is there, what sort of training are these people getting, particularly when it comes to human rights training? It raises a lot of issues.
In areas where the private security sector has been utilized for many years already we’re seeing a variety of different human rights issues arising. So again, in relation to detention centres, for example, now that could be immigration detention centres, but it could also be private prisons, it could also be privatized youth detention centres. These are areas where in recent years we’ve seen a lot of states outsourcing to the private sector, and the reality is that people who are incarcerated are particularly at risk from COVID-19, as are the security personnel who guard them, you’ve already mentioned that, there’s often little or no possibility of social distancing or self-isolation. And the working group we’ve actually received reports that migrants, for example, are being held in overcrowded and unsanitary conditions and they’re not being given adequate or any access to healthcare. And so, we see some of the most marginalised groups are rendered extremely vulnerable.
When it comes to border control and management. It’s another area where we’re seeing an increase use of private security during COVID-19. And there’s always been concerns about the use of force, about other physical integrity rights. But we’re also starting to see with the use of new technologies, the gathering of biometric data, as I mentioned earlier, so gathering fingerprints, for example, or using tracking and tracing technology, there are really serious concerns about the right to privacy. And there’s a danger that the security guards working in these kinds of situations are themselves put at risk of contracting COVID-19, but also that they are vectors, potentially vectors for the transmission of the disease. And, of course, we’ve been hearing that there have been real issues around security personnel having adequate personal protective equipment. Think one of the most interesting things about COVID-19 is that during the pandemic, the private security sector has been moving into new public spaces which bring new human rights concerns. So, for example, we’re seeing private security being utilized in hospitals, guarding medical personnel as well as the buildings. But we’re also seeing them providing security at COVID-19 testing centers. We’re hearing reports that these security guards are reportedly taking medical histories from individuals who are seeking COVID-19 tests. And, of course, that again, raises really serious concerns about privacy and data management. What training have they? What have they had? There are also reports that suggest that they’re not being given appropriate PPE, personal protective equipment. And again, given the extensive contracts with the general public, security personnel are vectors of the virus and both in terms of transmitting it and contracting it. And we’re already seeing statistics emerging that show that that private security personnel have the highest rate of COVID-19 mortality after medical personnel. And that’s of great concern.
I think the final concern that I would have about COVID-19 is in many countries around the world, you have private security actors operating alongside public security. And we’re getting reports that there have been, for example, private security actors operating together with police to evict people using force from their homes during a global pandemic. And obviously, that’s extremely problematic in a situation where there’s a public health emergency and people are being required to stay at home or to social distance or even to self isolate. And that is extremely concerning from a human rights perspective, impacts on the right to home and family life as well as, of course the right to health. And these are something these are some areas that I think that these are areas that are not explicitly dealt with in the code as already mentioned. And so, we’ve got new rights being specifically impacted. We’ve got new spaces being taken up by the private security sector. And there are absolutely concerns about both the personnel and their safety as well as the safety of the people and the communities into which they’re coming into contact with.
Now, COVID-19 has obviously raised its own particular set of challenges. But what do you think are the most serious threats to human rights related to the private security sector now, as well as in the short to medium term? I think I’ve mentioned already a lot of concerns that are immediate, particularly those that are related to COVID-19.
I think the explosion in the demand for private security is a major risk. Why do I say that? I see it because I think states are outsourcing without a proper eye on regulation, oversight and monitoring, and that in the rush to fill the security gap and to contract with private security, that the appropriate mechanisms are not are not necessarily in place. And I think you we talked about Jean-Marc Rickli talking about technology and that regulation is always playing catch up. I think this is one of the issues with the code that it’s trying to regulate a situation that arose or situations that arose out of Iraq and Afghanistan, where you did have private security actors operating in situations of armed conflict, whereas now we have them operating in many more spaces, taking on many more activities that traditionally had been the function of the state. And I think this is one of the key reasons why I think the code needs to be looked at a gain and it needs to be overhauled or modernized. I think the danger is that the firefighting approach to COVID-19 that has seen the expansion of the industry into these new areas becomes the norm. And that rather than recognizing this was a situation where we were forced to outsource and therefore we were really just trying to keep up with developments around the pandemic that states will see that as being the status quo and that they will not put in place oversight and regulation of the industry. And of course, that’s something that the Montreux document actively encourages states to do. I think states don’t take private security seriously enough and think the fact that we only have half a dozen state members of ICoCA is really a great shame and I think most states absolutely need to get on board and need to engage with both the Montreux Document Forum as well as ICoCA. And they need to they need to regulate at the domestic level. They need to regulate private security, whether it’s domestic, domestic security industry or whether it’s security that’s coming from outside and providing security locally. It really doesn’t matter. There needs to be robust regulatory frameworks in place to to deal with to deal with the industry.
Well, that pre-empts my last question, really, which was what do you think are the most effective means to ensuring human rights are respected by private security companies? And what role, if any, does ICoCA have to play in this?
I’ve always said that we need a mix of different regulatory mechanisms, that we need an international treaty, that we need domestic regulation, and that we do need these soft law initiatives because the industry is very diverse. We’ve got a spectrum. And I think one of the one of the big problems that ICoCA faces is that there are a lot of smaller companies, particularly in the global South, that might want to do the right thing or probably do want to do the right thing and don’t want to be involved in human rights violations. But the whole certification process that’s envisaged under the code is something that’s out of reach for many companies. And, what we don’t want is for ICoCA to only be the preserve of the few. It should be an organization that is inclusive of the many, and that includes the small local private security providers that are operating across the globe.
The views and opinions presented in this article belong solely to the author(s) and do not necessarily represent the stance of the International Code of Conduct Association (ICoCA).