Factsheet: Memorandums of Understanding on Security and Human Rights

The Challenge

In complex environments, businesses often rely on public security forces assigned by the host government to guard their operations. These arrangements can be complex, especially in conflict-affected and high-risk areas where state governance mechanisms and national institutions may be weakened and face a trust deficit. Host governments and public security may have complex inter-relationships and opaque hierarchies; national records for vetting of public security may be missing or difficult to access; training and equipment may be insufficient, monitoring and oversight mechanisms may be non-existent.

In the absence of effective regulation and clear agreement on roles and responsibilities, public security operating inside and/or in the vicinity of company sites can pose significant human rights risks to local communities as well as corporate staff and assets. These risks include increased exposure to conflict-related violence, arbitrary detention, harassment of vulnerable groups, or excessive use of force in crowd control situations or against protestors.

A Memorandum of Understanding (MoUs) is a well-recognized good practice that supports risk mitigation in a situation where a company works with public security. However, MoUs are difficult to agree and implement. Identifying the barriers to negotiating and signing MoUs, as well as monitoring their compliance is essential for companies to leverage their influence effectively and exercise due diligence over public security providers.

Challenges include:

• MoUs take significant time and resources to negotiate, especially if the company is pursuing an MoU alone and not coordinating with peer companies operating in the sector or region. As a result, the company faces a steep climb towards building trust with public security and the host government.
• Host governments may consider it unnecessary to include references to human rights in the MoU.
• MoUs do not usually have a legally binding effect and compliance relies on the parties’ good will. There is often a need for continuous negotiation and re-negotiation in response to political or regulatory change or due to developments in the operational context.
• Lack of public transparency and community trust may create tensions with communities, often exacerbated by the fact that the latter are rarely consulted and MoUs on security-related issues are rarely made public.
• MoUs may give security forces and/or companies the impression of legal immunity or protection from prosecution.
• The host government and company may have conflicting interests regarding the goal of the MoU. As an illustration, security forces may prioritize the government’s political agenda over the company’s operational needs, potentially leading to tensions or compromised security arrangements.
• Developing an Mou with public securtiy forces tainted by allegations or a history of human rights abuse can tarnish a company’s reputation, leading to public backlash, financial sanctions, and even legal consequences.

MoUs: What Should Companies Do?

Navigate limited commitment from host governments and public security management:

• Conduct a stakeholder mapping of the host government and identify entry points for dialogue. Strengthen interpersonal relationships with government stakeholders.
• Ensure the MoU has a basis in national laws or regulations.
• Ensure the MoU includes references to human rights. If there is too much sensitivity around the notion of human rights, be specific and define the concepts further.
• Coordinate with peer companies operating in the region or country to adopt a similar approach to MoUs. When multiple companies advocate for similar MoU clauses and bring the same arguments to the negotiating table, they have greater leverage.
• In discussions with host governments and public security leadership, demonstrate the benefits that MoUs can bring to the public security force, for example by emphasizing values of service, operational excellence, stability, ease of communication, prevention of security issues, and professionalism. Include provisions that address the practical needs of public security (e.g. training).
• Use the different initiatives and commitments that the government participates in (such as the Voluntary Principles on Security and Human Rights) as leverage to advance standards that are in line with security and human rights.
• If it is not possible to agree on a full MoU from the start, develop specific agreements around key areas of concern such as training, equipment transfers, or the working relationship between the company and public security forces. Continue working towards the development of a comprehensive MoU using these agreements as a basis. Alternatively, include clauses related to security and human rights in other MoUs and agreements developed with the government.
• Use language that public security forces can relate to. Appeal to values such as ‘operational excellence’ or ‘leadership.’

Cultivate multi-stakeholder support for the MoU:

• Ensure broad, gender-balanced and inclusive stakeholder engagement when designing the MoU; this could take the form of consultative discussions via in-country working groups on security and human rights (when such working groups exist) or via local civil society platforms with community representation.
• Endeavor to be as transparent as possible, for instance by making the MoU available to the public. If needed, ensure that sensitive critical operational details like security guard movements are redacted, while still making transparency a key goal of the process.
• Build broader political support for the MoU from embassies of home state governments.
• Get the right persons for the job. Ensure that the company staff responsible for government and public security engagement possess adequate understanding of the local context, are willing to listen, and have a long-term commitment to the role.
• Coordinate with other companies. If an industry association or in-country working group on security and human rights is in place, it would be the ideal environment for discussing challenges. Otherwise, consider setting up ad hoc meetings with security and government relations staff from other companies, or consider initiating such a forum.

Develop and agree on content:

- Create a standard MoU template and adapt it to local contexts. Include clauses on:

• Establishing a collaborative working relationship with the joint objective of respecting human rights and, where applicable, international humanitarian law (IHL).
• Setting out reporting channels to the company through points of contact and regular meetings.
• Itemizing the roles, responsibilities, and limitations of public security forces.
• Specifying the use of force rules, including a commitment to use the least force necessary to address a security threat.
• Agreeing to a protocol to manage equipment transfers in a manner that aligns with the most relevant guidance in this sector, the Voluntary Principles on Security and Human Rights (VPs) (e.g. a company’s payments should not be used to procure lethal weapons).
• Agreeing to a system of coordination and transparency around sharing of security information.
• Including references to company security and human rights policies and procedures, including the VPs, if relevant.
• Agreeing to a training program, for example on conflict sensitivity, IHL, human rights.
• Including modalities for company contributions to salaries, goods, or services, if relevant.
• Including vetting provisions to ensure that no security officers credibly implicated in past human rights abuses (i.e. there is a conviction, pending case or very strong evidence) be deployed to protect the company’s operations.
• Ensuring first aid and medical care to any persons injured from confrontations with the security forces in the project area.
• Including clarity on chain of command, processes on investigation of security incidents and referring to appropriate remediation (through operational level grievance mechanisms, host government judicial systems, or public security processes).

Monitor and ensure respect and compliance with the MoU:

• Support coordination between national, regional, and local government agencies to ensure proper implementation of, and respect for the MoU.
• Foster coordination with other stakeholders, for instance via in-country working groups on business, security, and human rights.
• Seek and maintain regular and constructive relationships with the local leadership of public security forces, enabling an early warning system for tensions, violence or conflict.
• Reassess and update the MoU regularly, particularly in the event of significant changes in the security environment (such as outbreak of an armed conflict, escalation of violence or other such developments).

Practical Tools

• Chapter 2.3 on ‘Memorandum of Understanding (MoU) of the DCAF-ICRC Toolkit on Addressing Security and Human Rights
• Chapter 2.8 on Human Rights Violations by Public Security of the DCAF-ICRC Toolkit on Addressing Security and Human Rights
• Model Clauses for Agreements between governments and security forces (Voluntary Principles on Security and Human Rights)
• VPI Implementation Guidance Tools (Voluntary Principles on Security and Human Rights)
• Ipieca Host Government Engagement Strategy Tool (DCAF, ICRC, Ipieca)