Private Security, Human Rights, and Covid-19: Regulatory Challenges at the Margins

Dr Sorcha MacLeod

Marie Sk?odowska Curie Individual Fellow & Associate Professor, University of Copenhagen

UN Working Group on the use of Mercenaries

Thank you, for your kind invitation to address this 3rd International Forum on Non-Traditional Security. I am Dr Sorcha MacLeod and I am a Marie Sk?odowska Curie Individual Fellow & Associate Professor at the University of Copenhagen in Denmark. I am also an independent human rights expert at the UN Working Group on the use of Mercenaries, but I speak to you today in my academic capacity.

Since the start of the COVID-19 pandemic we have seen a substantial leap in demand for certain types of private security services from both States and businesses, which has led to the exacerbation of existing challenges in the sector. Many governments and other actors around the world, such as the European Commission, are categorising private security as an ‘essential service’ or a ‘critical occupation.’ Additionally, States are resorting to emergency legislation to manage the public health crisis, and as a consequence we are seeing them turn to private security providers to fill public security gaps. At the same time, public tendering, contracting and licencing procedures for the outsourcing of security by States are often being rushed through or dispensed with altogether.

There are two distinct strands to this proliferating reliance on private security. Firstly, there is an upturn in contracts for existing activities in countries where the private sector has long been involved in the provision of security, for example, in migrant detention centres and public transport. Secondly, private security contractors are moving into new public spaces as a direct consequence of COVID-19 by positioning themselves as humanitarian actors and, for example, carrying out public health tracking, tracing, and testing services, as well as guarding quarantine sites.

All of these developments raise serious human rights concerns and impacts. I want to highlight briefly, five specific concerns.

1. COVID-19 Emergency Laws

As States resort to emergency legislation to cope with the public health crisis brought about by COVID-19, the risks of human rights violations occurring rise, and the enhanced role of private security companies in particular can become problematic. Emergency laws that criminalise already marginalised groups such as racial minorities, the LGBT+ community, or those in precarious housing, increase the likelihood of their contact with private security contractors hired to support the pandemic response. This leads to heightened risk and differentiated and disproportionate human rights impacts for those marginalised communities when private contractors are in a position to use force and detain people, to operate prisoner transport, or to run detention facilities. Furthermore, as States turn to the private sector to support medical responses to the pandemic, the management of testing and tracking by the private security sector raises considerable questions around data privacy. It also elicits fears about the adequacy of training of private security personnel who will be handling sensitive and private data, including biometric data.

Another troubling consequence of governments declaring states of emergency during the pandemic, relates to the easing of restrictions around public procurement tendering processes, such as allowing the direct award of contracts without competitive tendering. Reports are appearing highlighting that ‘bad contracting practices’ are being adopted impacting on the quality of the services provided and on labour standards. There are also several examples emerging of countries where aspiring individual security guards can obtain their licence to provide security online. While this in itself is not automatically problematic, without proper State monitoring, oversight, and accountability, it raises significant questions about levels of appropriate and effective vetting and training of personnel, especially training in human rights and in the use of force.

2. Detention Facilities, Immigration Control and Border Management

People who are detained or incarcerated in privatised security facilities, such as migrant detention centres, asylum centres, deportation facilities, youth and adult prisons, are particularly at risk from COVID-19, as are the security personnel who guard them. Some of the most marginalised groups are rendered extremely vulnerable in these situations and there are mounting reports of overcrowding and unsanitary conditions, with little or no possibility for social distancing or self-isolation. Additionally, there are increasing examples of detainees and incarcerated individuals subject to private security controls being denied access to adequate healthcare in violation of the right to health.

Another area where we are seeing a growing use of private security is in relation to border management. Again, there are existing human rights worries around the use of force and detention at borders, but increasing data gathering and data management activities also raise concerns. Frequently, private security personnel are tasked with gathering and processing biometric data such as fingerprints, as well as operating tracking and tracing tools, which again raises fears around privacy breaches and other human rights violations, as well as contractor competence and training. Furthermore, security guards in these contexts run the risk of becoming infected with the virus themselves and acting as vectors for its transmission.

3. Medical and Covid-19 Testing Sites

During the COVID-19 pandemic, security contractors have moved into more public spaces which generates new human rights concerns. While private security is not a new sight in hospitals in many parts of the world, there is certainly an increase in contractors protecting medical facilities and medical personnel due to the virus. Newly established COVID-19 testing centres are also a fruitful source of new contracts for the sector. There are, however, accounts of security guards taking medical histories from members of the public who suspect that they have the virus. This raises questions, not only about the inherent suitability of security personnel for this type of activity, but also the nature and extent of their human rights training, particularly around sensitive medical privacy and data issues. Furthermore, reports suggest that often security personnel are not provided with proper Personal Protective Equipment (PPE), which is of grave concern to workers’ representatives and trade unions. Given the extensive contact with the general public at medical and testing centres, private security personnel are again susceptible to contracting the virus themselves and becoming vectors for transmission of the virus. Statistics are already emerging that show that security guards have some of the highest COVID-19 mortality rates comparative to other occupations. In many countries there are almost certainly links with additional high-risk duties, low pay, poor health and other inequalities for countless workers in the sector, coupled with weak oversight and monitoring by States.

4. Complicity with Public Security

Finally, as Covid-19 is progressing, global incidences of State security forces using ‘excessive force to enforce lockdowns’ (International Code of Conduct Association, 2020) are rising. In many countries private security providers often work closely with public security and so in these situations the risks of complicit rights violations are high. For example, there are disturbing reports of private security companies acting together with police officers during the pandemic to evict people from their homes by force. The unrestrained use of force and use of weapons is problematic enough, but evictions during a pandemic where there are public health imperatives and laws demanding that citizens stay at home, socially distance or even self-isolate, are reprehensible. Other reports suggest that the pandemic is being used as a cover for land grabs and attacks on human rights defenders enabled by public and private security providers. Such actions violate not only the right to life, to physical integrity, and the right to health, but also the right to home and family life and the right to property. While there have been some positive reactions by States during the pandemic in response to unlawful private security actors, significantly more needs to be done.

5. Consequences for the International Regulatory Framework

Important multi-stakeholder initiatives regulate the private security industry but they are soft law in nature and limited in scope: (1) the Montreux Document which applies only to situations of armed conflict; and (2) the International Code of Conduct for Private Security Providers which applies only to so-called ‘complex environments’ (ICoC Part B Definitions). The examples I have cited here today fall largely outside the scope of both documents, highlighting problematic regulatory gaps, and which needs urgent attention.

Conclusions

It is clear therefore that the current shift by States to outsourcing security to the private sector as a response to the challenges of the COVID-19 pandemic raises important and fundamental questions about regulation of the sector and its capacity to violate human rights. In conclusion, I would like to offer some recommendations to States and to the private security industry:

· States must ensure that emergency legislation adopted to address the public health crisis and enable the outsourcing of security is not misused, particularly in relation to marginalised groups. It must also not become normalised.

· Given the substantial and increasing demand for private security, urgent attention should be paid to ensuring proper, human rights compliant, and accountable provision of private security that recognises and takes account of the COVID-19 vulnerabilities of particular groups.

· Moreover, the provision of adequate and sufficient PPE, safe working environments, and adequate pay and conditions, for all private security personnel must be ensured as a priority.

· States and private security providers must accept the necessity for effective monitoring, oversight and accountability, and require effective vetting of contractors, human rights instruction, and training on the use of force.

Ultimately, COVID-19 should not be instrumentalised to avoid regulation altogether or to let existing standards drop. States must also recognise that binding regulation of this industry at both the national and international levels is essential, alongside soft law provisions, to ensure that human rights are protected. States do not escape their human rights obligations when they choose to outsource security to the private sector, even in a pandemic.

Thank you for your attention and I wish you a successful conference.

[The paper on which this presentation is based is available online: S.MacLeod, (2020) Private Security, Human Rights, and COVID-19: Regulatory Challenges at the Margins, CEPRI Working Paper Series Issue 5/2020 , SSRN http://ssrn.com/abstract=3716492]

Contributor bio

Dr Sorcha MacLeod is an Associate Professor and Marie Sk?odowska Curie Individual Fellow at the University of Copenhagen Faculty of Law, in the Centre for Private Governance (CEPRI). She is also a Guest Lecturer at the Hertie School of Governance and Justus Liebig University Giessen. She specialises in researching and teaching business, human rights and security, in particular the regulation and human rights impacts of Private Military and Security Companies (PMSC). In 2018, Dr MacLeod was appointed as an independent human rights expert to the UN Working Group on the use of Mercenaries established under the Human Rights Council's Special Procedures. She is an invited expert to the UN Open-ended Inter-governmental Working Group on PMSCs and participated in the drafting of the Montreux Document on Private Military and Security Companies and the International Code of Conduct for Private Security Providers. She has Observer Status at the International Code of Conduct Association. Her Marie Sk?odowska Curie Fellowship research project, 'RESpECT - Public Actions, Private Rules at the Margins: Ensuring Respect for Human Rights by Private Security Companies' has received funding from the European Union’s Horizon 2020 research and innovation programme under the Marie Sk?odowska-Curie grant agreement No.844999.