A/HRC/15/25
• To promote international cooperation between States regarding licensing and
regulation of the activities of PMSCs in order to more effectively address any
challenges to the full implementation of their human rights obligations, including the
right to self-determination
• To establish and implement mechanisms to monitor the activities of PMSCs and
violations of international human rights and humanitarian law, in particular any
illegal or arbitrary use of force committed by PMSCs, to prosecute the perpetrators
and to provide effective remedies to the victims
50.
The terms used in the draft convention are defined in article 2. In particular, it
proposes as a definition of a PMSC “a corporate entity which provides on a compensatory
basis military and/or security services by physical persons and/or legal entities”. Military
services refers to specialized services related to military action, including strategic
planning, intelligence, investigation, land, sea or air reconnaissance, flight operations of
any type, manned or unmanned, satellite surveillance, any kind of knowledge transfer with
military applications, material and technical support to armed forces and other related
activities while security services refers to armed guarding or protection of buildings,
installations, property and people, any kind of knowledge transfer with security and
policing applications, development and implementation of informational security measures
and other related activities.
51.
The Working Group describes inherently State functions as functions that cannot be
outsourced to PMSCs in any circumstances. Among such functions, consistent with the
principle of State monopoly on the legitimate use of force, are the direct participation in
hostilities, waging war and/or combat operations, taking prisoners, law-making, espionage,
intelligence, knowledge transfer with military, security and policing application, use of, and
other activities related to, weapons of mass destruction and police powers, especially the
powers of arrest or detention including the interrogation of detainees.
52.
The general principles governing the treaty are set out in Part II of the draft
convention. The eight principles are: that the State party bears responsibility for the military
and security activities of PMSCs registered or operating in their jurisdiction, respect for the
rule of law by PMSCs, respect of State sovereignty by PMSCs, the State party’s obligation
to prohibit PMSCs from directly participating in hostilities, terrorist acts and military
actions in violation of international law, the prohibition on outsourcing inherently State
functions to PMSCs, including the use of certain weapons of a nature to cause superfluous
injury or unnecessary suffering and the prohibition on PMSCs and their personnel with
regard to illegally acquiring, possessing or trafficking in arms and ammunitions.
53.
Part III concerns the national regime of regulation and oversight, the obligation to
license the services of PMSCs, the establishment of a national registry, the obligations of
training and vetting the PMSC personnel and respecting fundamental labour standards and
the regulation of the use of force and firearms by PMSCs.
54.
The issue of States parties’ responsibility to impose criminal, civil and/or
administrative sanctions on offenders and provide remedies to victims are addressed in Part
IV. The draft convention outlines States parties’ obligations to ensure that the acts of
carrying out inherently State functions, the unlawful use of force and firearms, and the
unlawful use of certain weapons and illicit trafficking in arms by PMSCs and their
personnel, are offences under the national legislation of States parties. In addition, all
activities of PMSCs occurring without the required licence and authorization are also
considered offences. States parties are required to ensure that individual criminal
responsibility is established, that PMSCs and their personnel are held accountable and that
effective remedies are provided to victims.
12
GE.10-15155
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