Relationship between private military and security companies and the extractive industry from a human rights perspective

The present report is submitted pursuant to Commission on Human Rights resolution 2005/2, in which the Commission established the mandate of the 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, and Human Rights Council resolution 33/4, in which the Council renewed that mandate. The report covers the activities of the Working Group since its previous report to the Council (A/HRC/39/49).

The Working Group is mandated by the Human Rights Council to monitor and study the effects of mercenaries and mercenary-related activities, as well as the impact of the activities of private military and security companies on human rights, particularly on the right of peoples to self-determination. Following on from its previous studies on national regulations of the said companies and on the privatization of security in places of deprivation of liberty (see A/HRC/36/47 and A/72/286), the Working Group continues its examination of the human rights impact of private military and security companies operating in specific sectors. In the present report, the Working Group considers the role of private military and security companies in the extractive industry, a sector that has witnessed significant growth across the world, which has in turn stimulated demand for security services in extractive projects, particularly for projects located in areas marked by weak governance or armed conflict.

In the present report, the Working Group seeks to shed light on the relationship between private military and security companies and the extractive industry and its human rights impact. In recent years, these two sectors have been at the centre of a number of allegations of human rights abuses in different regions. Although the human rights impact of the extractive sector on the one hand and the private military and security sector on the other have been studied and analysed and led to the establishment of several international initiatives, the interaction between the two has received significantly less attention.

The Working Group therefore explores the role played by private military and security companies within security arrangements put in place by extractive companies. It also examines the human rights impact of private military and security companies working for extractive companies, analyses the existing regulatory framework applicable to these actors, and considers the challenges in achieving accountability and providing remedies to victims of human rights abuses committed by private military and security companies in the service of extractive companies. Lastly, the Working Group makes recommendations to States, private military and security companies, extractive companies and other stakeholders.

On 31 July 2018, the term of office of Gabor Rona ended. The Working Group is grateful for his valuable expertise and contribution to initiatives and activities implementing the mandate during his six-year tenure. On 1 August 2018, following her appointment by the Human Rights Council at its thirty-eighth session, Sorcha MacLeod joined fellow members Jelena Aparac, Lilian Bobea, Chris Kwaja and Saeed Mokbil.

The Working Group held its thirty-fifth and thirty-sixth sessions in Geneva from 26 to 30 November 2018 and from 1 to 5 April 2019 respectively; it held its thirty-seventh session in New York from 15 to 19 July 2019. During the sessions, members of the Working Group held bilateral meetings with representatives of Member States, international and non-governmental organizations and other relevant interlocutors. At the thirty-fifth session, the members reflected on their future thematic priorities. At its thirty-sixth session, the Working Group convened two expert consultations with a view to gathering information for its thematic reports. Members and external experts engaged in vibrant and rich discussions on the gender dimensions of the private military and security industry on 2 April, and shed light on the relationship between private military and security companies and the extractive industry on 3 April.

Since its previous report to the Human Rights Council, the Working Group addressed a number of communications jointly with other special procedure mandate holders. Communications were addressed to the Governments of Armenia, Australia, Belgium, Canada, France, Iraq, Kyrgyzstan, Tunisia, Turkey and the United Kingdom of Great Britain and Northern Ireland regarding the risk of arbitrary deprivation of life and violations of other human rights of foreign nationals facing prosecution and trials in Iraq in relation to their alleged membership in the Islamic State of Iraq and the Levant. A communication was addressed to the Russian Federation and the Central African Republic in relation to the killing of journalists who were reportedly investigating the activities of a private military security company. Communications were also addressed to the United States of America and to two companies based in the United States, and to Australia, highlighting allegations of human rights violations and abuses committed in two migrant detention centres that are serviced by private military and security companies.¹

1. Summaries of the communications are available from www.ohchr.org/EN/HRBodies/SP/Pages/CommunicationsreportsSP.aspx. ↩

Country visits are a key element in the implementation of the mandate of the Working Group, providing an insight into concrete practices and challenges on the ground, helping to reveal the impact of the activities of mercenaries, mercenary-related actors and private military and security companies on human rights while engaging constructively with States and other stakeholders on issues pertinent to the mandate. Many of the requests made by the Working Group for country visits are, however, not met favourably. The Working Group nonetheless strives to ensure a balanced geographical coverage in its visits.

In this regard, the Working Group recalls the annex to Human Rights Council resolution 16/21, in which the Council urged States to cooperate and assist the special procedures by responding in a timely manner to requests for information and visits. The Working Group also draws attention to the remarks made by the Secretary-General to the Security Council on mercenary activities in Africa on 4 February 2019, when he urged all countries to cooperate with the Working Group, including those to which the Working Group had sent an official visit request.

During the period under review, the Working Group conducted an official visit to Switzerland from 13 to 17 May 2019, and will present a report on the visit to the Human Rights Council at its forty-fifth session.

On 17 October 2018, a member of the Working Group, Jelena Aparac, made a presentation to the First Standing Committee (on Peace and International Security) of the Inter-Parliamentary Union (IPU) at a hearing on “the non-admissibility of using mercenaries as a means of undermining peace and violating human rights”. The Working Group subsequently commented on the draft resolution prepared by the Standing Committee thereon. The IPU Assembly adopted a resolution on the non-admissibility of using mercenaries and foreign fighters as a means of undermining peace, international security and the territorial integrity of States, and violating human rights by consensus on 10 April 2019.

On 23 January 2019, Ms. Aparac delivered her remarks at the Security Dialogue on Private Military and Security Companies, organized by Switzerland as chair of the Forum for Security Cooperation of the Organisation for Security and Cooperation in Europe, in Vienna. Ms. Aparac provided an overview of the Working Group’s mandate, elaborated on elements defining private military and security companies in national and international law, and addressed some of the current challenges and opportunities with respect to that sector.

On 4 and 5 February 2019, Lilian Bobea took part in a multi-stakeholder workshop on the regulation, oversight and governance of the private security industry in the Caribbean region, organized by the Caribbean Community Implementation Agency for Crime and Security and the Geneva Centre for the Democratic Control of Armed Forces in Trinidad and Tobago. The event provided an opportunity to interact with high-level State representatives, private companies and civil society from a region with a growing private security industry.

On 20 and 21 May 2019, Sorcha MacLeod participated in the first session of the open-ended intergovernmental working group to elaborate the content of an international regulatory framework, without prejudging the nature thereof, to protect human rights and ensure accountability for violations and abuses relating to the activities of private military and security companies, held pursuant to Human Rights Council resolution 36/11. On behalf of the Working Group, she expressed support for a legally binding instrument that would complement the existing regulatory framework laid out in other relevant instruments. She stressed the importance of ensuring strong human rights safeguards in any future regulatory mechanism on private military and security companies, such as transparent and effective State accountability mechanisms that ensure access to justice and remedies for victims of human rights abuses or violations of international humanitarian law related to the activities of private military and security companies; addressing jurisdictional issues and mutual legal assistance for effective vetting and accountability processes; and adequate and effective training. She also pointed out that any future regulatory mechanism should extend to subcontractors.

Historically, States have been the principal clients of private military and security companies, the activities of which were mainly examined through the lens of the privatization of State functions. More recently, however, private actors have become more prominent as clients of private military and security services. This shift in the client base towards non-State clients raises numerous questions regarding the evolving activities of private military and security companies in both the public and private spheres, given also that private actors appear to be given prerogatives traditionally attributed to the State, such as the use of force. Moreover, this trend may have implications for accountability for any human rights abuses committed by such companies. Indeed, if ensuring accountability for abuses committed by private actors contracted by States has proven difficult, the question of how this can be achieved in the framework of private-private relationships raises understandable concerns and merits special attention, particularly in the context of armed conflict, where corporate actions can give rise to international crimes (see A/HRC/17/32).

In the present report, the Working Group refers to extractive companies as “any company in the industries of extracting, harvesting or developing natural resources or energy”, the definition used by the Voluntary Principles on Security and Human Rights.²

2. See www.voluntaryprinciples.org. ↩

The Working Group furthermore understands a private military or security company to be “a corporate entity which provides on a compensatory basis military and/or security services by physical persons and/or legal entities”. It defines military services as “specialized services related to military actions including strategic planning, intelligence, investigation, land, sea or air reconnaissance, flight operations of any type, manned or unmanned, satellite surveillance, any kind of knowledge transfer with military applications, material and technical support to armed forces and other related activities”, and security services as “armed guarding or protection of buildings, installations, property and people, any kind of knowledge transfer with security and policing applications, development and implementation of informational security measures and other related activities”.³ In the present report, the Working Group also refers to “private security” for different private security actors operating in the extractive industry (see para. 25 below).

3. A/HRC/15/25, annex, art.2. ↩

The Working Group prepared its report on the basis of information obtained from a variety of sources. In July 2017, it organized an expert consultation on private military and security companies and the extractive industry in New York. In April 2019, another consultation, bringing together experts from Africa, Latin America, the Caribbean and Europe, was held in Geneva. In January 2019, a public call for submissions was issued.⁴ The Working Group also relied on desk research and interviews with stakeholders.

4. See www.ohchr.org/EN/Issues/Mercenaries/WGMercenaries/Pages/CallforsubmissionesPrivateMilitarySecurity.aspx. ↩

The Working Group faced several challenges in preparing the report. The limited amount of recent, publicly accessible data proved to be a particular challenge when assessing current trends, while the lack of transparency associated with these sectors often obscured the distinction between different security providers operating in the extractive industry and their respective roles and responsibilities. While obtaining relevant data was challenging in peaceful contexts, gaps in information were even more significant in situations of armed conflict.

Today, the extractive industry is an important client base for private military and security companies. It is also an industry with formidable economic power and considerable political influence, albeit regularly associated with concerns over access to land and human rights abuses on local communities. Data from 2016 show that extractive corporations are among the world’s highest earning entities, and significantly exceed the national gross domestic revenues of many countries.⁵ In 2018, five out of the 10 largest corporations in the world by revenue were oil and gas companies.⁶ While the industry has been traditionally dominated by companies registered in the global North conducting operations in natural resource-rich countries in the global South, in recent years the market has diversified; currently, the two highest earning extractive companies in the world are from China.⁷ The impact of the extractive industry on socioeconomic conditions and human rights has often been analysed through the North-South lens; such a premise is evolving, however, because of the strengthening of economic ties among countries in the global South.

5. Global Justice Now, “10 biggest corporations make more money than most countries in the world combined”, 12 September 2016. ↩
6. See https://fortune.com/global500/search/. ↩
7. Ibid. ↩

At the same time, the extractive industry constitutes a major source of national revenue and exports for some States, especially those from the global South. According to the World Bank, 22 States – 10 of them in Africa, and none in the global North – rely on natural resources for more than 20 per cent of their gross domestic revenue.⁸ Proceeds from the extractive sectors have regularly been associated with corruption and the accrual of wealth by ruling elites rather than improving everyday living standards. Moreover, the extractive industry is a high-investment sector with long-term commitments by companies to operate in a defined part of the territory where they exploit resources.⁹ Such companies make multi-billion-dollar investments to build, maintain and operate extractive projects and employ a large number of workers, some of them recruited from abroad; they therefore have 3 A/HRC/15/25, annex, art.2. 4 See www.ohchr.org/EN/Issues/Mercenaries/WGMercenaries/Pages/Callforsubmissiones PrivateMilitarySecurity.aspx. 5 Global Justice Now, “10 biggest corporations make more money than most countries in the world combined”, 12 September 2016. 6 See https://fortune.com/global500/search/. 7 Ibid. 8 https://data.worldbank.org/indicator/NY.GDP.TOTL.RT.ZS. 9 Hugo Slim, “Business actors in armed conflicts: towards a new humanitarian agenda”, International Review of the Red Cross, vol. 94, No. 887, p. 911. the potential to have a long-lasting impact on local communities. They also have a vital interest in securing their operations by relying on different types of security providers, including, to a large extent, private security.¹⁰

8. https://data.worldbank.org/indicator/NY.GDP.TOTL.RT.ZS. ↩
9. Hugo Slim, “Business actors in armed conflicts: towards a new humanitarian agenda”, International Review of the Red Cross, vol. 94, No. 887, p. 911. ↩
10. See submission by the International Commission of Jurists. ↩

The economic benefits generated by the extractive industry may lead some States to put its interests ahead of those of the local population and to treat those opposed to extractive projects as a threat to the State’s economic interests. Indeed, some States invoke national economic and security interests to justify the suppression of dissent to extractive projects, for example by criminalizing environmental rights defenders.¹¹

11. Jen Moore, In the National Interest? Criminalization of Land and Environment Defenders in the Americas, MiningWatch Canada and the International Civil Liberties Monitoring Group, August 2015. ↩

The extractive industry is also intrinsically linked to the issue of access to land. Traditionally, military and economic approaches were pursued to secure access to land. The military approach involved different strategies to acquire natural resources, ranging from direct conquest and invasion to secret wars.¹² The economic approach seeks to gain access to a territory through economic competition. While these approaches are distinct, they are often complementary in so far as security can be “sold” on several levels: by training public or private armies, performing intelligence services, or selling military equipment.¹³ In some situations, extractive corporations and security actors work together to suppress opposition and impose their control over land rich in natural resources by repressing local communities, including indigenous peoples.¹⁴

12. Jelena Aparac, “La responsabilité internationale des entreprises multinationales pour les crimes commis dans des conflits armés non internationaux”, PhD dissertation, Université Paris Nanterre, 2019. ↩
13. Ole Kristian Fauchald and Jo Stigen, “Corporate responsibility before international institutions”, The George Washington International Law Review, vol. 40, No. 4 (2009), p. 1033-1034. See also Andrew Feinstein, The Shadow World: Inside the Global Arms Trade (Picador Paper, London, 2012). ↩
14. See for example https://spcommreports.ohchr.org, communication PHL 1/2019. ↩

Studies have shown that the more a State is rich in natural resources, the more likely it is to be subject to long-lasting armed conflicts and civil wars.¹⁵ The exploitation of natural resources can therefore play a major role in conflict dynamics; for instance, non-State actors are more likely to profit from easily extractable resources, such as gemstones or gold, as their extraction does not entail sophisticated technology, important investments and specialized knowledge. By contrast, resources requiring feasibility studies, teams of experts and advanced technology, such as oil and gas, are more likely to benefit States.¹⁶ The link between the exploitation of natural resources and armed conflicts has been widely recognized, including by the Security Council, for example in its resolutions 1173 (1998), 1237 (1999) and 1306 (2000) and 1343 (2001) on the conflicts in Angola, Sierra Leone and Liberia, and more recently in the Central African Republic (see A/HRC/39/70). These events also led to the adoption of several national and regional laws pertaining to “conflict minerals”.¹⁷

15. Karen Ballentine and Heiko Nitzschke, eds., Profiting from Peace: Managing the Resource Dimensions of Civil War (London, Lynne Rienner Publishers, 2005) See also International Committee of the Red Cross, “Le droit international humanitaire et les défis posés par les conflits armés contemporains”, 31 October 2015. ↩
16. Aparac, “La responsabilité des entreprises”. See also Paivi Lujala, “Deadly Combat over Natural Resources Gems, Petroleum, Drugs, and the Severity of Armed Civil Conflict”, Journal of Conflict Resolution, vol. 53, No. 1, 2009. ↩
17. For example, Directive 2014/34/EU of 26 June 2013 and Regulation (EU) 2017/821 of 17 May 2017, outlining supply chain due diligence obligations for European Union-based importers of specific resources from conflict-affected and high-risk areas. ↩

Given the economic interests prevalent in the extractive industry and the environments in which they operate, it is not surprising that security plays a fundamental role in the exploitation of natural resources. Although a number of actors actually provide security services to the extractive industry, their respective roles, responsibilities and reporting lines are not always legally defined and are rarely publicly disclosed. In general, there are three types of security providers in extractive operations: security professionals directly employed by an extractive company (“in-house security”); private military and security companies contracted by the company; and State security forces operating in and around the extractive site. More often than not, extractive companies rely on all these actors, resulting in what appear to be complex and fluid security arrangements to the general public. In some contexts, paramilitary groups and non-State armed actors may also be involved. Transparency with regard to private security arrangements within the extractive industry may be further complicated by the use in some regions of both formal private military and security companies (that is, those registered and authorized to offer security services in accordance with relevant national rules and regulations) and informal private security providers (those operating without a licence or with links to criminal entities).

According to information received by the Working Group, extractive companies contract private military and security companies to provide a broad range of “traditional” security functions, such as devising risk assessments and mitigation measures, securing and guarding premises, securing the transportation of extractive products, and conducting security training for onsite extractive staff. For these purposes, extractive companies contract either international or local private military and security companies, with further subcontracting possible. Private military and security personnel are not usually authorized to carry or use firearms or live ammunition, although many seem to be equipped with non-lethal weapons, such as tear gas.

In areas characterized by weak governance and in the absence of effective State security forces, extractive companies may, however, rely on private security (in-house and private military and security companies) to secure their operations. This may also be the case when State security forces have limited capacity and are asked to concentrate on key threats to national security. In such cases, private military and security companies can be engaged to perform functions beyond the regular ones; for instance, in one country, mining companies reinforced their private security personnel in response to a high risk of kidnappings of foreign national employees, coupled with additional security measures by State security forces.¹⁸ Particularly acute security threats, such as criminal piracy, trafficking cartels, guerrilla forces and expropriation efforts by corrupt government regimes,¹⁹ may also lead extractive companies to contract private security services.

18. Submission by the Business and Human Rights Resource Centre. ↩
19. Carlos Díaz Bodoque, “PMSC’s and Extractive Industries in Southern Africa: a Good Business for Everyone?”, Current Affairs. ↩

In the specific context of armed conflict, the Working Group was informed about past situations where private security personnel, employed or contracted to support an extractive operation, allegedly conducted military-like operations either on their own or with the support of the State.²⁰ Depending on the particular aspects of such operations, determined on a case-by-case basis, such actions may qualify as direct participation in hostilities, in which case the relevant provisions of international humanitarian law would directly apply to those private actors. In such cases, the distinction between security and military services is blurred, even though a private military or security company might identify itself only as a security provider. In other cases, States have sought to augment their military capacity by engaging private military or security services in exchange for access to and proceeds from extractive operations. One well-known example is the involvement of Executive Outcomes in diamond mining in Sierra Leone.²¹ Reports indicate, however, that such practices, whereby private military services are provided in exchange for mining or oil concessions, may be continuing in more recent conflicts.

20. See for example Occidental lawsuit (re Colombia), Business and Human Rights Resource Centre, 18 February 2014. ↩
21. Sabelo Gumedze, “Addressing the use of private security and military companies at the international level”, Institute for Security Studies, 2009. ↩

Data shared with the Working Group by one extractive company illustrate how different types of security providers may be engaged in the same extractive project.²² In this specific case, the contracted personnel largely outnumbered the security professionals directly employed by the company. Another international extractive company, however, informed the Working Group that it prefers to employ in-house security directly, both as a means to strengthen its relations with local communities living near its extractive projects and to have direct control over its private security personnel.

22. Newmont, Annual Report on the Voluntary Principles on Security and Human Rights, 2019. ↩

This also points to the awareness of some extractive companies of the reputational risks associated with allegations of misconduct and abuses by security providers operating in and around their sites. In some instances, extractive companies are more inclined to rely on their own employees or contractors than on State security forces in order to maintain direct influence and control over conduct by means of company policies and regulations, contracts, training and direct reporting lines. Moreover, extractive companies are likely to carefully weigh how to engage with State security forces in contexts where these forces have been accused of committing human rights violations. The reality of managing security in complex situations therefore presents sensitive challenges to extractive companies.

The Working Group received information suggesting that, in the context of mixed security arrangements at extractive sites, State security forces would normally be tasked with discharging major security operations, such as managing security during large-scale protests and demonstrations. In some countries, such as Ghana, where private security personnel are prohibited from carrying firearms (see A/HRC/39/49/Add.1), extractive companies rely on public forces in the event of serious security incidents. Some States have also established specialized units within the national police that are dedicated to protecting extractive and other large-scale projects.²³ While States have a duty to maintain public peace and order throughout their territory, including in locations near extractive operations, in some instances, the close association between State security forces and extractive companies raises questions about whose interest the public forces are defending. For example, the Working Group was informed that police personnel may be stationed within facilities belonging to an extractive company or that a police station was opened in a community as a result of the start of extractive operations in the area.

23. Nigel D. White and others, “Blurring Public and Private Security in Indonesia: Corporate Interests and Human Rights in a Fragile Environment”, Netherlands International Law Review, vol. 65, No. 2, 2018. ↩

The line between public and private interests in the provision of security services to the extractive industry may be further blurred when State security agents perform public duties at one time and are permitted to work as private security personnel at another, in some cases reportedly keeping their uniforms and firearms (see A/HRC/7/7/Add.2). The contracting of police personnel to perform private security tasks is legal in some States, for example in Peru, where a large number of contracts between the national police and extractive companies has been documented.²⁴ Agreements of this type find their legal basis in the “extraordinary police services” that can be rendered by off-duty police personnel, pursuant to law No. 1267 on the National Police of Peru and related Decree 003-2017-IN.²⁵ At other times, State security agents are said to receive payments in-kind from an extractive company.²⁶ In one instance, a memorandum of understanding obtained by a non-governmental organization included provisions for a mining company to provide police with fuel, vehicles, maintenance, a per diem and other types of monetary support, accommodation and meals, and administrative support.²⁷

24. EarthRights International, Informe: Convenios entre la Policía Nacional y las empresas extractivas en el Perú. Análisis de las relaciones que permiten la violación de los derechos humanos y quiebran los principios del Estado democrático de Derecho, 2019. ↩
25. See Jose Saldana Cuba and Jorge Portorcarrero Salcedo, “The Violence in Laws: The Use of Force and the Criminalization of Socio-Environmental protests in Peru”, Derecho PUCP, 2017, No.79. ↩
26. Submission by MiningWatch Canada. ↩
27. Ibid. ↩

State security personnel “moonlighting” by working as private security guards in parallel to their public functions can lead to confusion over their respective roles and responsibilities, in particular with regard to the appropriate use of force.²⁸ This also inevitably complicates attempts to clearly categorize security providers in the extractive industry, especially given that the nature and content of agreements between State security forces and extractive companies are often not disclosed to the public. As the Inter-American Court observed in a case regarding oil exploration and exploitation without free, prior and informed consent, the signing of agreements between States and extractives companies regarding the provision of security by the armed forces or the national police “did not promote a climate of trust and mutual respect”.²⁹

28. Alan Bryden and Lucia Hernandez, “Addressing Security and Human Rights Challenges in Complex Environments”, Business and Human Rights Journal, vol. 1, p. 153. ↩
29. Inter-American Court of Human Rights, Kichwa Indigenous People of Sarayaku v. Ecuador, Judgment of 27 June 2012, para. 193. ↩

The different forms of cooperation between State security forces and private security personnel employed or contracted by extractive companies therefore form a complex web of relationships in which it is often difficult to identify or distinguish one security actor from another. Moreover, many studies and reports on the impact of the extractive industry on human rights describe security providers in such general terms as “mine security” because they, understandably, focus their attention on specific at-risk groups or on particular violations and abuses. For stakeholders striving to shine a spotlight on the respective chains of commands and roles and responsibilities of State security forces and private security personnel employed or contracted by an extractive company, transparent and up-to-date information is generally difficult to obtain, thus frustrating any efforts to make security providers accountable for their actions.

International human rights law, applicable in peace and armed conflicts, requires States to respect, protect and promote human rights. National and international human rights mechanisms recognize that corporate actors have an independent responsibility to respect, and not to infringe upon, human rights, and that the State has an obligation to prevent, or otherwise investigate and provide redress for, harm caused by such actors. This implies that the State should take all appropriate measures, including adopting legislation and administrative instructions to regulate corporations.

By its very nature, the extraction of natural resources touches upon core elements of the right of peoples to self-determination, one of the fundamental tenets of the international system. The Charter of the United Nations, in its Articles 1, 2 and 55, recognizes the principle of self-determination, and accords it equal recognition as the principles of international peace and security. It is further recognized as a rule of international customary law.³⁰ The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights begin with the right to self-determination (common article 1). In order for people to exercise that right, they should have the freedom to pursue economic, social and cultural development, and to “freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence”.

30. Patrick Dailler., Mathias Forteau and Alain Pellet, Droit international public, 2009, p. 578. ↩

International human rights instruments, such as the United Nations Declaration on the Rights of Indigenous Peoples, and related jurisprudence specifically highlight the rights of indigenous peoples in this regard, in particular securing indigenous peoples’ free, prior and informed consent over developments proposed on their lands. Indigenous peoples and others have the right to oppose and actively express opposition to extractive projects, including by organizing and engaging in peaceful acts of protest (A/HRC/24/41, para. 19).

International humanitarian law provides a set of rules applicable to armed conflicts, distinguishing between international armed conflicts between two or more States and non-international armed conflicts (civil wars). According to common article 1 to the four Geneva Conventions, States are obliged to respect and ensure respect for international humanitarian law. According to common article 3, it applies to all actors on the territory of the State affected by armed conflict, including State and non-State actors, such as individuals and corporations. International humanitarian law is recognized to be the lex specialis, prevailing over other sets of rules, including international human rights law when the two branches of law are in contradiction. A private military or security company and its personnel providing services to an extractive company in a situation of armed conflict is therefore bound by the rules set out under international humanitarian law, and should respect human rights. The status of private military and security personnel under international humanitarian law is determined according to the nature and circumstances of the functions they perform, in particular whether they participate directly in hostilities.

Extractive companies, like other business entities, are subject to national law in the country in which they operate. Nonetheless, in the majority of States studied by the Working Group, national laws and regulations governing private military and security companies (where such laws and regulations exist), contain inadequate human rights safeguards (see A/HRC/36/47). In addition, very few States have national legislation that provides for corporate criminal liability.

Even in the absence of such legislation, States have other means to strengthen human rights protections in the context of security arrangements in the extractive industry and to render the provision of security services to the extractive industry transparent and thereby more accountable. The following instruments provide opportunities to clarify the respective roles and responsibilities of different security actors and to regulate the activities of private security providers:
(a) Concession agreements (State – extractive companies): States can determine specific conditions under which a concession to extract may be granted, including human rights standards, the delineation of security roles and responsibilities between public security forces and private security personnel, mechanisms for security actors operating at the extractive site to engage and consult with local communities, and criteria for the engagement of private military and security companies, such as only hiring those that are registered in accordance with relevant national regulations.
(b) Regulation, licencing and certification of private security services (State – private military and security companies): States have the authority to define, monitor and sanction non-compliance with rules and requirements of private military and security companies, including building in adequate human rights safeguards. In addition, States may set up independent mechanisms to monitor the actions of such companies and vet their personnel operating in the extractive sector.
(c) Memoranda of understanding and similar agreements (State – extractive company): Memoranda of understanding and similar agreements on security arrangements between the State and the extractive company also provide an opportunity to clearly and publicly specify the roles and responsibilities of public and private security personnel in extractive operations and the terms under which they operate, and also the human rights standards and obligations of all actors providing security services, including private military and security companies.
(d) In-house security (extractive company – employee relationship): Extractive companies have control over recruitment processes, policies, regulations and training, and disciplinary procedures applicable to their own security staff. They also have the authority to make these instruments known to the public and to include human rights standards throughout (for example, by means of thorough vetting of prospective staff, specific human rights policies and training).
(e) Procurement procedures and private contracts (extractive company – private military and security company): Extractive companies determine the terms and conditions of calls for tenders and contracts with private military and security companies. Transparency with regard to privately contracted security personnel could be helpful in improving relations with local communities, addressing some of the shortcomings in identifying and investigating perpetrators of alleged abuses and violations, and helping to distinguish between personnel under the direct authority and responsibility of extractive companies on the one hand, and other actors on the other.
(f) Subcontracting of security services (private military or security company to another): Subcontracting should not compromise the human rights standards to which private military and security companies must adhere, and these standards should be fully reflected in contracts with subcontractors.

In reality, the above tools do not appear to be utilized to further human rights protection, possibly owing to pressure on host Governments not to introduce stricter rules on extractive companies in order to keep incentives for foreign investment. Indeed, some southern countries have been accused of violating the principles of international economic law when they attempt to promote good governance and respect for human rights for corporate actors.³¹ In addition, concession agreements, memoranda of understanding on security arrangements, and company-level data and policies on its security setup are often not publicly available, which prevents public scrutiny and accountability for the contents, implementation and overall conduct of security providers in the extractive industry.

31. See Chevron vs. Ecuador, International arbitration award, March 2019; see also Moore, In the National Interest?. ↩

In the absence of international legally binding regulation of corporations, recent decades have witnessed a proliferation of codes of conduct and multi-stakeholder and other initiatives for specific business sectors. Two main initiatives have been developed for the private military and security sector. The Montreux Document on Pertinent International Legal Obligations and Good Practices for States Related to Operations of Private Military and Security Companies during Armed Conflict contains a compilation of international law obligations pertaining to private military and security activities that are addressed primarily to States, and focus on armed conflicts. International and non-governmental organizations, companies that contract private military and security companies, and the companies themselves are invited to use the good practices section of the document, which should be adopted during peacetime. The International Code of Conduct for Private Security Service Providers sets out human rights responsibilities and good governance principles and standards for its member companies, regardless of the identity of their clients.

Several sector-specific initiatives exist for extractive companies, such as the Extractive Industries Transparency Initiative, the Alliance for Responsible Mining and the Kimberley Process. The Due Diligence Guidance for Meaningful Stakeholder Engagement in the Extractives Sector, adopted by the Organization for Economic Cooperation and Development in 2017, proposes a framework for identifying and managing risks with regard to stakeholder engagement activities to ensure that companies play a role in avoiding and addressing any adverse effects. It briefly refers to security issues, including recommendations on contracting and managing private security personnel, and avoiding a violent response when taking security precautions in situations where there is opposition to the extractive project.

Two instruments apply to both private military and security companies and extractive companies, namely the Voluntary Principles on Security and Human Rights and the Guiding Principles on Business and Human Rights. The Voluntary Principles were developed almost 20 years ago to guide companies operating in the extractive industry on how to assess risks and to take public and private security measures in a manner that respects human rights. They include a number of important principles guiding private security conduct and functions; for example, they state that services provided by private security personnel should only be defensive and preventative, and not include activities that are exclusively the responsibility of the State. Private security should not employ individuals “credibly implicated in human rights abuses”, and should use force only when strictly necessary and with proportionality, citing applicable international guidelines such as the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. They should not violate the rights of individuals to freedom of association and peaceful assembly, and there should be mechanisms for reporting and investigation, and referrals to local authorities in the event of inappropriate physical force.

Guidance tools have been developed through the Voluntary Principles to assist companies in identifying clear standards for and expectations of private security personnel, and to verify compliance through inspection, review and audit of the contract. In 2013, an audit protocol was developed to assess compliance with key indicators, such as whether a security and human rights training package existed and was in use, and whether security and human rights were taken into account and included as a requirement in a service contract with a private security contractor. A toolkit “on addressing security and human rights challenges in complex environments” also exists as an online knowledge hub and dedicates a module to working with private security providers.³² The Voluntary Principles Initiative, currently comprising 10 Governments, 30 corporations and 15 non-governmental organizations, was established to promote respect for human rights when providing extractive industries with security services, in accordance with the Voluntary Principles; to strengthen implementation and accountability, and to expand the membership of the Initiative. One concrete outcome of the Initiative was the establishment of in-country implementation working groups in six countries.³³

32. The hub, developed and managed by the Democratic Control of Armed Forces and the International Committee of the Red Cross, is available from www.securityhumanrightshub.org. ↩
33. Submission by the Voluntary Principles Secretariat. ↩

Much criticism has nonetheless been directed at the Voluntary Principles with regard to their limited impact for communities near extractive operations.³⁴ Multi-stakeholder collaboration, facilitated by the above-mentioned in-country groups, has provided a platform for highlighting critical issues and identifying practical solutions. In Ghana, for example, this has involved discussions among communities, non-governmental organizations, government ministries and the private security sector on broader issues of private security sector reform (see A/HRC/39/49/Add.1). Notwithstanding, the Voluntary Principles and other similar non-binding initiatives have to date failed to bring about the fundamental and practical changes that would strengthen prevention of abuses, or to bring about effective remedies for victims when required.

34. See Nigel D. White et al., “Blurring Public and Private Security in Indonesia: Corporate Interests and Human Rights in a Fragile Environment”, Netherlands International Law Review, vol. 65, No. 2, 2018. ↩

One common feature of the above-mentioned initiatives is the emphasis on corporate due diligence as a means for companies to manage proactively any potential or actual adverse impact on human rights. While a few States have introduced mandatory due diligence in national legislation, in most there is no legal obligation to do so, and no judicial monitoring of compliance. In this context, there has been a tendency for companies to focus on process rather than on tangible results for local communities.

Efforts are under way by the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights to regulate, in international human rights law, the activities of transnational corporations and other business enterprises. ). In parallel, discussions are similarly being held by the open-ended intergovernmental working group to elaborate the content of an international regulatory framework, without prejudging the nature thereof, to protect human rights and ensure accountability for violations and abuses relating to the activities of private military and security companies. In the light of the experience accumulated over the years with regard to the limited effectiveness of non-binding initiatives, it is clear that national and international legally binding instruments are necessary to achieve greater protection of human rights in the area of private military and security companies and extractive industries, as well as in other business sectors.

Human rights violations and abuses in the context of the exploitation of natural resources have been widely documented (see A/HRC/39/17 and A/HRC/41/54). Cases are most frequently reported in areas rich in natural resources in Latin America, Africa and Asia, and to a lesser extent in North America. A plurality of actors are allegedly responsible, including States and non-State actors, such as private military and security companies, paramilitary and criminal security groups, at times acting individually and at others undertaking coordinated action.

Those most at risk of human rights abuses are indigenous people and communities, environmental and other human rights defenders, and artisanal miners. Across these categories, women are frequently affected. In March 2019, the Human Rights Council adopted, by consensus, resolution 40/11, in which it recognized the critical role of environmental human rights defenders and the threats they faced from State and non-State actors. The consequences of abuses on the physical and mental health of victims are, in many cases, long-standing and severe.

In many extractive operations, risk assessments conducted by private military and security companies play an important role in creating or sustaining the narrative with regard to those who should be identified as a security risk. Individuals who oppose extractive projects, including by engaging in peaceful protests, appear to be depicted as a risk to public order, despite their rights to freedom of assembly and association. The Working Group received information regarding the direct involvement of private military and security companies in the repression of opposition activity to extractive projects; for example, in the United States of America, protests against the Dakota Access Pipeline that transports crude oil, passing through the lands of the Standing Rock Sioux Tribe, were allegedly met with excessive use of force by State law enforcement officials, the North Dakota National Guard and private military and security companies. Operating together, these parties were accused of using excessive force – including in one instance private military and security service staff allegedly using guard dogs – against protestors. According to media reports, the daily situation reports of one of the private military and security companies operating around the pipeline suggested that it had used infiltration techniques to sow discord and monitor actions of protestors in an attempt to thwart protest activity and to identify threats to the pipeline.³⁵ Tactics to divide local communities between supporters and opponents of extractive projects have also reportedly been used elsewhere to curb resistance by environmental and human rights defenders, indigenous peoples and others.

35. Alleen Brown, Will Parrish and Alice Speri, “Leaked documents reveal counterterrorism tactics used at Standing Rock to “defeat pipeline insurgencies”, The Intercept, 27 May 2017. See also https://spcommreports.ohchr.org/Tmsearch/TMDocuments, JUA USA 7/2016 and JUA USA 14/2016. ↩

Artisanal and small-scale miners are also often categorized as a security risk without adequately taking into account broader socioeconomic factors. Figures show that artisanal and small-scale mining is an important livelihood and income source, with some 100 million workers and their families around the world dependent on artisanal mining compared to approximately 7 million people in industrial mining.³⁶ At the same time, some small-scale mining may pose security risks, as seen in Ghana, where reports were received of violence associated with unauthorized mechanized mining on concessions granted to large-scale legal mines. Armed illegal miners reportedly attacked and shot at unarmed mine security personnel, while police reportedly shot at unauthorized miners (see A/HRC/39/49/Add.1).

36. See www.worldbank.org/en/topic/extractiveindustries/brief/artisanal-and-small-scale-mining. ↩

Allegations brought to the attention of the Working Group include surveillance, death threats or other types, intimidation and campaigns to discredit those opposing extractive projects. There have also been allegations of extrajudicial killings, enforced disappearances, torture and ill-treatment, and sexual and gender-based violence, particularly in certain Latin American, Asian and African countries.³⁷ In other reports, in two mines, one in Asia, the other in Africa, of rocks being thrown at men, women and children, and of large rocks being pushed down on villagers, particularly in pits.³⁸ In some instances, the injuries sustained were aggravated by a lack of access to medical care, which was either not affordable or too distant. For example, in 2015, the Working Group documented the alleged beating, abduction and murder of environmental human rights defenders by private security guards hired by a subsidiary pulpwood supplier company in Indonesia.³⁹

37. See for example the submission by the University of Denver. ↩
38. Submission by Mining Watch Canada. ↩
39. See https://spcommreports.ohchr.org/Tmsearch/TMDocuments, IDN 3/2015 and OTH 3/2015. ↩

Global Witness, a non-governmental organization that tracks killings of land and environmental defenders, concluded that 2017 was the most dangerous year on record, when 207 community defenders were allegedly killed by State forces and non-State actors, of which eight killings were attributed to private security. Agribusiness and mining were the most dangerous sectors.⁴⁰

40. Global Witness, “At What Cost? Irresponsible business and the murder of land and environmental defenders in 2017”, 2018. ↩

Private military and security companies and other security actors provide the conditions that allow extractive companies to operate. Therefore, in situations where extractive companies fail to respect the right of peoples’ to self-determination, such companies may be considered to be complicit in those abuses. This includes cases where indigenous peoples have been denied free, prior and informed consent in the awarding of concession contracts on their territorial lands, or when the extraction of natural resources prevents them from having access to their land, thus depriving them of their traditional means of livelihood. This is particularly noticeable in cases of forced displacement and evictions and of violence against environmental and other human rights defenders whose access to resources and the means necessary to sustain their livelihood is barred, with a significant impact on living standards and potential to exacerbate inter- and intra-community conflicts over the scarce resources that remain available. The loss and erosion of land, coupled with environmental pollution caused by the extractive operations and in some cases burning of homes in villages in and around the mine lease area, have in cases led to severely overcrowded and unhealthy living conditions.

Some forms of cooperation between extractive private security personnel (in-house or private companies) and State security forces raise particular concerns from a human rights perspective. In addition to the elements described above, the Working Group is aware of several cases in which private security personnel allegedly assisted and supported State security forces in forcibly removing people or communities from their lands in the vicinity of an extractive site. For example, both public and private forces have been accused of concerted harassment, violence and destruction of property and possession of property of a local family near the Yanacocha mine in Peru.⁴¹ In other instances, private military and security companies have contributed to violations by State security forces by providing logistical support, such as vehicles or intelligence obtained through video surveillance installed around the mine site.⁴²

41. Joint communications JUA PER 1/2016 and JUA PER 3/2015. See also www.frontlinedefenders.org/en/case/case-history-maxima-acuna-de-chaupe. ↩
42. Submission by Rights and Accountability in Development. ↩

Allegations of widespread sexual violence, including rape and gang rape, have been reported around extractive projects, in particular those located in remote areas. Around the Porgera Joint Venture gold mine in Papua New Guinea, 119 women were allegedly subjected to sexual violence and excessive use of force by mine security and police guarding the mine. One of the victims alleged that she had been gang raped by five security personnel who caught her on the Kogai waste dump while she was selling betel nut to informal miners working there in September 2009. The acts allegedly took place during a period when the mine was majority-owned and operated by Canadian mining company Barrick Gold Corporation.⁴³ Like in so many cases of sexual violence, the perpetrators of these violations have not been brought to justice. Survivors of sexual or gender-based violence often suffer stigma and exclusion from their communities, leaving them in a vulnerable situation. The significant challenges that survivors of sexual violence, especially women, face have been well documented,⁴⁴ and may be further exacerbated when private military and security companies are involved.

43. Joint communication AL PNG 2/2017. ↩
44. See Committee on the Elimination of Discrimination against Women, general recommendation No. 33 (2015) on women’s access to justice; see also OHCHR, Women's Rights are Human Rights, 2014. ↩

A major challenge to securing accountability for human rights abuses by private security companies operating in the extractive industry is, given the fluid and complex security arrangements that characterize the sector, the difficulty of identifying perpetrators. Private military and security companies and other private security personnel may not be easily identifiable in the absence, in many instances, of a uniform and/or insignia. This is problematic in cases in which such companies have directly committed human rights abuses. In other cases, where they are complicit through actions that enable, facilitate or contribute to abuses by extractive companies or violations by the State, documenting their involvement is equally challenging.

The opaque security arrangements prevalent in much of the extractive sector make it extremely difficult to ascertain chains of command, responsibilities and levels of coordination among the different security actors, and undermine transparency and monitoring efforts. Furthermore, it is usually difficult to find public confirmation of the identity of subcontractors in the event that they are hired.

A number of lawsuits involving human rights abuses by private security working in the extractive industry were brought to the attention of the Working Group. These were mainly legal claims for redress before national courts of the country where the parent company of the subsidiary running the project was domiciled. In most cases, a settlement was reached out of court, usually comprising financial compensation and sometimes short-term work contracts, and therefore falling short of achieving accountability and holistic remedies for the victims. Some cases were also dismissed owing to jurisdictional issues.

In the host State of an extractive company, access to justice is often compromised for a number of reasons, such as the high costs associated with bringing a case to court, and the lack of legal aid funding; lack of legal professionals with the requisite knowledge and/or experience and/or willingness to pursue such sensitive cases in some jurisdictions; fear of retaliation for reporting abuses, and lack of victim and witness protection; weak judicial systems; and lengthy court proceedings. Moreover, such abuses are committed in a climate of impunity, in which perpetrators are rarely held to account, which further discourages victims from reporting abuses. Fundamentally, there is also an imbalance of power between the company (extractive or private military or security company) and the individuals and communities affected by those companies’ operations. This was striking in the case of Chevron vs. Ecuador, where the principles of international economic law, notably the corporation’s right to profit, were favoured over protective human rights laws promoted by the State.

In the company itself, grievance mechanisms are frequently not known to persons with a reason to lodge a complaint, and in some cases are set up on an ad hoc basis. Where complaints are lodged, many are viewed as “unsubstantiated” or “inconclusive”. They are often poorly equipped to deal with the complexities of serious human rights abuses, such as the protection of victims from reprisals from alleged perpetrators and providing other forms of support to engage meaningfully with the process, especially for victims that have not been appropriately informed about their rights. In some cases, when victims have engaged with the company’s grievance mechanism, they have been asked to sign a legal waiver that denies them the right to seek judicial remedy or that restricts their access to justice. They also fail to meet international standards of independence of investigations, when the latter are conducted by company employees. These mechanisms therefore also fail to provide justice and remedies to victims of serious human rights abuses.

Private military and security companies are among a number of actors providing security services to extractive companies, amid generally complex and opaque security arrangements within the industry. In this context, they have been known to directly commit human rights abuses, as well as to facilitate abuses and violations committed by others, working under contract from extractive companies, and sometimes alongside State security forces. The Working Group is concerned over the lack of transparency with regard to the actors engaged in securing extractive operations and their respective roles, responsibilities and chains of command. The ambiguity surrounding the provision of security services in the extractive industry reinforces the lack of accountability and the unchecked power experienced by victims of human rights abuses and violations with respect to extractive corporations and their affiliates, including private military and security companies. In the view of the Working Group, there is a vital need to define the role of each security actor, and to introduce greater transparency and access to information, coupled with stronger monitoring and oversight of private military and security companies and other actors providing security services to the extractive industry in order to effectively prevent, address and remedy any abuses committed by private military and security companies in the service of extractive companies.

Although initiatives have already been taken to raise standards and respect for human rights, they are non-binding and have made only limited progress with regard to those affected by extractive operations. First and foremost, it is incumbent upon States to fulfil their international human rights obligations by making prompt efforts to address human rights concerns arising from the relationship between the extractive industry and private security. Secondly, as an industry that wields significant economic power and represents a major client base for private military and security companies, the extractive sector has the potential to leverage its influence by insisting that private military and security companies deliver services respectful of human rights of all stakeholders affected by extractive operations, and not commit human rights abuses or facilitate human rights abuses and violations by others. Lastly, private military and security companies should adopt policies and measures to avoid operating in environments with human rights risks and to redress human rights abuses should they be committed. In the light of the conclusions, the Working Group makes the recommendations below.

States should strengthen their regulation and oversight of private military and security companies with a view to improving human rights protections and taking into consideration the multiple sectors in which such companies operate, including the extractive industry. This should include strict processes of licensing and vetting, and provisions on mutual legal assistance.

In this regard, States should support international legally binding instruments on transnational corporations and other business enterprises and on the activities of private military and security companies, respectively. States should also enact other relevant legislative reform, notably on mandatory human rights due diligence and corporate liability.

States should utilize the tools at their disposal fully (see para. 40 above) in relation to security arrangements in the extractive industry, by building in human rights guarantees into their concession agreements, memoranda of understanding and other similar documents with extractive companies, and increase their capacity to monitor private military and security sector actions, including when private military and security companies are operating in remote locations.

With a view to increasing transparency, States should make public the agreements that they enter into with extractive companies, including those with a bearing on the provision of security services. Such agreements should clearly demarcate the respective roles and spheres of action for different security providers operating in and around the extractive site.

States should ensure that private military and security company personnel who have committed human rights abuses are brought to justice, and that victims are afforded effective remedies.

Extractive companies should make public information regarding security arrangements in their operations. This should include key aspects of contractual agreements with private military and security companies, memoranda of understanding with State security forces, and rules and procedures guiding in-house security, and should publicize agreements and rules on the use of force by security providers. They should also issue periodic reports, including detailed information regarding the number and nature of complaints, the alleged involvement of security providers, and how complaints have been addressed. Investigation policies and procedures should also be publicly available.

Extractive companies should include human rights-related clauses and conditions in their calls for tenders and contracts with private military and security companies, notably with regard to expectations of professional and human rights-compliant conduct by private military and security personnel. This should include detailed rules on the use of force, the frequency and content of human rights training, expectations regarding vetting of employees, reporting on security incidents, appropriate coordination with State security forces, specific standards and certification required by private military and security companies, and restrictions and requirements for subcontracting security services.

Private military and security companies should make public the codes of conduct they expect their personnel to respect, and be transparent about the activities they carry out while working for the extractive company. To facilitate identification of their personnel, such companies should ensure that their employees wear a uniform or insignia that makes them distinguishable from other security providers operating in the same area.

Private military and security companies should ensure that their employees respect human rights and international humanitarian law, as applicable. To enable them to do so, all employees should have adequate and continuous training on human rights and international humanitarian law. Such companies should conduct extensive background searches on their employees to ensure they have not been involved in misconduct during previous assignments. They should also consider how their regular security activities may be used by other actors who commit human rights violations and abuses, and take steps to mitigate the risks of becoming complicit in those violations and abuses.

Private military and security companies should only respond to public and transparent calls for tenders issued by extractive companies. They should also publicly and periodically report on security incidents, including those in which their personnel may be involved in human rights abuses, and take steps to address them, in accordance with human rights standards and a victim-centred approach.

States, extractive companies and private military and security companies should take all possible steps to strengthen the implementation of the Voluntary Principles on Security and Human Rights so that they have a meaningful impact on individuals and communities affected by extractive operations. They should continue efforts to expand the membership, increase public reporting around implementation, and increase the number and effectiveness of in-country working groups.

Increased monitoring of actions of private security providers, including of private military and security companies, should be ensured, including in remote locations, with a view to strengthening documentation of violations and abuses. In this process, the Working Group encourages human rights mechanisms, civil society organizations and others to make every effort in their investigations and reporting to identify perpetrators, to the extent possible.