A/HRC/10/14
page 12
45. The Working Group notes that the document places a heavier burden of responsibility
on “Territorial States” (States where private military and security companies operate) than on
“Contracting States” or “Home States” from where these companies originate or operate. The
limited scope of obligations for “Contracting States” or “Home States” can be seen throughout
the whole document. Moreover, the restrictive character of the document is illustrated by the
indication that international humanitarian law only applies in armed conflict, and it fails to
include a reference to the State obligation to protect and to apply the principle of due diligence.1
46. The commercial logic of the private military and security industry appears to be the
impetus behind the Swiss Initiative document. For example, good practice 17 proposes “to
consider pricing and duration of a specific contract as a way to promote relevant international
humanitarian law and human rights law”, and the Initiative has therefore de facto recognized the
validity of the new industry instead of proposing a moratorium on such recognition until the
good practices which it has developed are translated into reality and relevant mechanisms have
been put in place. The Working Group notes that the industry lobby appears to have participated
quite strongly in the Initiative’s process.
47. Nothing in the Montreux Document indicates that States should ensure that existing laws,
including criminal laws, are enforced, particularly, but not exclusively, the prohibition on torture
and other cruel, inhumane or degrading treatment, and requirements that private military and
security companies and their employees be held accountable for serious crimes. Nor is there any
provision in the document that States should strengthen government standards for procurement,
contracting and management of the private military and security industry backed by an effective
reporting mechanism.2
48. Finally, the approach on Contracting, Territorial and Home States excludes those States
from where the manpower is recruited by private military and security companies, in most cases
without consultations with the respective Governments.3 It also fails to provide for a centralized
system at the State level which would be responsible for registering all private military and
security industry contracts for applying common standards and for monitoring contracts.
49. The Working Group believes that new international regulations, most likely in the form of
a new international convention with an accompanying model law are needed in order to bring
private military and security companies fully out of the legal “grey zone”. The Working Group
has started drafting and discussing with Governments and with companies the possible elements
of such a convention.
1
Amnesty International Public Statement on the Montreux Document on Pertinent International
Legal Obligations and Good Practices for States related to the Operations of Private Military and
Security Companies during Armed Conflict (AI Index IOR 30/010/2008).
2
Human Rights First: How to End Impunity for Private Security and Other Contractors,
Blueprint for the Next U.S. Administration, November 2008.
3
See A/HRC/7/7/Add.4.
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