A/HRC/42/36
proscribe private military and security companies so that they did not harm human rights.
Participants agreed, but noted that the draft regulatory framework could consider clarifying
that it was not intended to circumvent the prerogative of States to determine the legality of
private military and security companies within their borders. It was pointed out that the
discussion highlighted the relevance of having a guidance framework that could be used
universally.
States of nationality (element 7)
7 (a) Determine which military/security services may not be performed
abroad by nationals of the State;
7 (b) Establish a process to grant authorization for nationals to perform
military and security services abroad, including criteria for licensing;
7 (c) Regulate the conduct of private military and security companies’
personnel;
7 (d) Monitor and ensure accountability;
7 (e) Ensure access to remedy for victims where violations have occurred.
7 (f) The recruitment of its citizens and permanent residents to work for
private military and security companies without a transparent and fair authorization
process from a designated regulatory authority.
67.
Several delegations sought clarification of the terms “contracting State”, “territorial
State”, “home State” and “State of nationality”. Speaking as Co-Chair-Rapporteur of the
Montreux Document Forum, the representative of Switzerland suggested looking for
guidance at the definitions of the terms “contracting State”, “territorial State” and “home
State” contained in the Montreux Document. A delegation expressed its appreciation for the
efforts that had led to the Montreux Document, but stated for the record that it could not be
bound by the Document as it was not a signatory.
68.
A delegation suggested adding the following language to element 7 (e): “The
responsibility of ensuring access to remedy for victims is not limited to States of
nationality. Other regulatory actors and private military and security companies should also
have such responsibility.”
Private military and security companies (element 8)
8 (a) Establish and implement compliance mechanisms to ensure compliance
with national and international law, selection, vetting and training of personnel
performing military/security services;
8 (b) Establish a grievance mechanism;
8 (c) Supervise and hold accountable private military and security companies’
personnel that engage in misconduct.
69.
A delegation expressed concern about the possible characterization of private
military and security companies as an armed group under customary international
humanitarian law, as that did not reflect current understanding of the law. Another
delegation argued that private military and security companies could not be considered
armed groups because they provided a business service and did not claim to be a party to a
conflict. It further asked what would be required from private military and security
companies and whether they would be invited to ratify the instrument. In its view, that
would be problematic considering that the public international law of treaties covers the
relationship between States and not between States and private entities. With regard to
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