A/HRC/22/41
28.
He further briefed participants on the work of a temporary steering committee,
consisting of representatives of States, the industry and civil society, to develop a draft
charter for the oversight mechanism of the International Code of Conduct. The current draft
foresees a certification process that signatory companies have to successfully undergo to
become member companies, as well as continuous performance assessment and a grievance
mechanism. He recognized that, although the proposed grievance mechanism allowed
victims to seek a review of the substance of their grievances, practical obstacles and
security concerns would probably make it impossible for the mechanism to investigate the
alleged facts with sufficient reliably in the field. Therefore, rather than fact finding with
regard to an alleged violation of the Code, the mechanism would probably have to focus on
whether the company adequately cooperated in effectively addressing the grievance in
question.
29.
In the discussion, a number of delegations expressed their support for the Montreux
Document and the International Code of Conduct and the proposed oversight mechanism as
initiatives which complement national regulations. Some delegations noted that market
pressures were one means for encouraging implementation and highlighted efforts by States
to require adherence to the International Code of Conduct in contracts and tenders. One
delegation also noted recent developments in producing performance standards for PMSCs.
While there was room to discuss additional measures, including under the auspices of the
Human Rights Council, these should complement existing initiatives and focus on human
rights, taking into account and based on the viewpoints of all stakeholders. No one
regulatory initiative could be viewed as the ultimate solution. Rather, a multifaceted
approach was needed.
30.
Some delegations felt that the existing initiatives, despite having many positive
features, also had considerable gaps, which should be addressed through an international
convention. For example, the Montreux Document failed to clarify the legal status of armed
PMSC staff, whose presence in conflict zones created challenges in terms of ensuring
respect for the principle of distinction. It also failed to limit the number of staff that could
be deployed and the types of activities they may undertake. In this respect, the term “private
military companies” was in itself problematic, as some member States considered military
functions to be strictly a State prerogative.
31.
Other delegations noted that other weaknesses from a human rights perspective
include the fact that the Montreux Document did not refer to an obligation for member
States to conduct human rights impact assessments prior to engaging the services of a
PMSC. The International Code of Conduct also had inherent weaknesses in that it did not
ensure remedies for victims. As the code is a voluntary initiative for industry, it cannot be
invoked in a court of law unless it has been integrated into a contract or national legislation.
Neither the Montreux Document nor the International Code of Conduct required that States
contract only with companies that would sign and adhere to the Code. In some cases, States
had contracted private military and security companies that faced serious allegations of
human rights abuses.
32.
Some delegations noted that existing initiatives did not ensure criminal
accountability for abuses committed by PMSC staff. In this regard, one non-governmental
delegation presented the findings of a study undertaken in one country that was emerging
from armed conflict. The study found that no PMSC staff accused of serious crimes,
including alleged violations of international human rights and international humanitarian
law, had been held accountable either by the territorial, home or contracting State. In this
regard, Mr. Melzer acknowledged the jurisdictional difficulties arising from the
transnational nature of the private security business and recalled that it was up to States to
take legislative measures to address these difficulties. He pointed to draft Swiss legislation
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