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Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development

Human Rights Council

Fifteenth session

Agenda item 3

Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development

Report of the Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination

Chairperson/Rapporteur: Josй Luis Gуmez del Prado

Contents

Paragraphs Page

I. Introduction.............................................................................................................................................. 1–3 4

II. Activities.................. 4–30 4

A. Communications............................................................................................................................ 7–8 5

B. Press releases................................................................................................................................. 9–11 5

C. Country visits.............................................................................................................................. 12–23 6

D. Regional consultations.............................................................................................................. 24–28 7

E. Other activities of the Working Group members.................................................................. 29–30 8

III. Progress towards the elaboration of a possible new draft convention on
private military and security companies......................................................................................... 31–88 9

A. Context and purpose................................................................................................................. 32–42 9

B. Scope of application.................................................................................................................. 43–46 11

C. Content........................................................................................................................................ 47–57 11

D. Comments from Member States and non-governmental entities..................................... 58–88 13

IV. Conclusions and recommendations................................................................................................. 89–93 17

Annex

Draft of a possible Convention on Private Military and Security Companies
(PMSCs) for consideration and action by the Human Rights Council............................................................ 19

I. Introduction

1. In the present report, the Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination describes the activities it has undertaken since it last reported to the Human Rights Council in March 2009. The report focuses in particular on the progress achieved in the elaboration of a possible draft convention on private military and security companies (PMSCs). It takes into consideration communications sent between 16 December 2008 and 18 April 2010.

2. The report is submitted pursuant to resolution 2005/2 of the Commission on Human Rights establishing the mandate of the Working Group and resolution 7/21 of 28 March 2008 extending the mandate of the Working Group.

3. The Working Group is composed of five independent experts serving in their personal capacities: Josй Luis Gуmez del Prado (Spain), Chairperson during the period when this report was being drafted, Ms. Shaista Shameem (Fiji), Amada Benavides de Pйrez (Colombia), Alexander Nikitin (Russian Federation) and Najat al-Hajjaji (Libyan Arab Jamahiriya). Ms. Shameem took on the chairmanship of the Working Group from April 2009 to April 2010. In April 2010, the Working Group decided to operate under a three-monthly rotating chairmanship for the last year of their mandate.

II. Activities

4. In accordance with its usual practice, the Working Group continued to hold three regular sessions per year, two in Geneva and one in New York. The Working Group concentrated its efforts on its ongoing work on the development of a possible new international convention on the regulation of activities of PMSCs, discussed in detail in Part III of this report. It also carried out two country visits, held regular meetings with member States representatives, NGOs and experts and reviewed allegations regarding the activities of mercenaries and PMSCs and their impact on human rights and decided on appropriate action.

5. The Working Group has recently received information suggesting that in some instances PMSCs are supporting warlords and rebel groups. For instance, allegations suggest that in Afghanistan a number of PMSCs contracted by the Government of the United States have a privileged relationship with the Taliban. Others suggest that a German PMSC is considering deploying a significant number of military guards to Somalia to train warlord groups close to the self-proclaimed but not internationally recognized President of Somalia, Abdinur Ahmed Darman.

6. The collusion between PMSCs and rebel groups is a worrisome trend which calls for further attention, in particular in view of its potential impact on the enjoyment of human rights. Accordingly, the Working Group intends to engage in the near future with the authorities of the Governments concerned, seeking additional information with respect to both situations described below with a view to reminding all States of their responsibilities when contracting PMSCs and of the possible negative implications when PMSCs operate in conflict zones without a legal framework or mechanism to ensure that they respect international human rights and humanitarian law.

A. Communications

7. The present report covers communications sent from 16 December 2008 to 18 April 2010 and replies received from 1 February 2009 to 1 June 2010. The details of this correspondence and the information provided in response by Governments are reflected in an addendum to the report (A/HRC/15/25/Add.1).

8. A total of 17 communications were sent to 15 countries,[1] relating to alleged involvement of country nationals in mercenary activities in a foreign country and to activities of PMSCs and their impact on the enjoyment of human rights. In some cases, the Working Group sent similar communications to several Governments whose nationals were allegedly involved in the same incident. For half the communications sent, the Working Group received a complete or partial response from the Government concerned. The Working Group expresses its appreciation to those Governments that have provided substantive replies to its communications and invites those that have not done so to cooperate with its mandate from the Human Rights Council and the General Assembly.

B. Press releases

9. In addition to its media advisories or press releases issued in connection to country visits, regional consultations and the holding of its regular sessions, the Working Group issued two press releases in connection to alleged mercenary activities in Bolivia and Honduras. On 29 April 2009, the Working Group expressed its grave concerns at allegations that mercenaries were involved in a plot against Bolivian authorities. It received some information from Governments concerned in response to its correspondence but in view of the international ramifications of the mercenary activities of the incident, the Working Group is calling on all the Governments concerned to carry out a transparent investigation into the incident. In this connection, it has requested the Bolivian authorities to share its findings with the Working Group.

10. On 9 October 2009, the Working Group issued a statement following reports that former paramilitaries from Colombia had been recruited in Honduras to protect properties and individuals from further violence between supporters of the de facto Government and those of the deposed President Manuel Zelaya. It urged the Honduran authorities to take all practical measures to prevent the use of mercenaries within its territory and to fully investigate allegations concerning their presence and activities.

11. In addition, following a decision from a United States Federal District Court to dismiss an indictment against five Blackwater security guards charged with voluntary manslaughter and firearms violations in connection with a shooting in Nisour Square in Iraq 2007 during which 17 civilians, among whom women and children, were killed and over 20 others injured, many seriously, the Working Group issued a statement expressing its concern that this decision might lead to a situation where no one would be accountable for grave human rights violations. The Working Group commends the Government of the United States for appealing this decision and calls for all necessary measures to be taken to ensure that in accordance with international obligations there is no impunity for such violations.

C. Country visits

12. The Working Group undertook two country visits in the course of 2009, one to the Islamic Republic of Afghanistan and the other to the United States of America.

13. Afghanistan, together with Iraq, represents the largest theatre of operations for PMSCs and the United States, which has the largest military and diplomatic presence in Afghanistan, is the principal employer of PMSCs in the country. The presence and activities of PMSCs in Afghanistan are very much interconnected with the large number of unauthorized armed groups of various kinds on Afghan territory. The Ministry of Interior has estimated that no fewer than 2,500 unauthorized armed groups were operating in the provinces under governmental control, which represent less than half the territory of the country. There was a perception among interlocutors that many de facto non-State armed groups used the regularization process for PMSCs to disguise their groupings as private security companies, reinforcing the perception that PMSCs were a threat to peace and the stability of Afghanistan. In early 2008, the Government of Afghanistan adopted a comprehensive regulation to address some of these challenges and regulate the activities of PMSCs operating on its territory. However, the Working Group noted that there is a lack of systematic monitoring and reporting on cases involving the use of force by PMSCs on the part of the Government, the Afghan Independent Human Rights Commission (AIHRC) and the United Nations Assistance Mission in Afghanistan (UNAMA).

14. The Working Group did not receive first-hand information that PMSC personnel have engaged in direct combat activities since the adoption of the Regulation. Nevertheless, the Working Group noted that by protecting Forward Operating Bases in conflict zones, a civilian contractor, by protecting legitimate military targets, becomes a military target and may lose protection under international humanitarian law.

15. The vast majority of NGOs stressed that the high presence of armed private guards did not generate a feeling of increased security among the Afghan population and that, to the contrary, the large number of armed individuals, vehicles and weapons created a feeling of fear and insecurity. The AIHRC also underlined the lack of clarity regarding the jurisdiction applicable to PMSCs and the lack of accountability when crimes are committed. On the basis of its findings, the Working Group made several recommendations to the Government. The full report and a series of recommendations can be found in an addendum to this report (A/HRC/15/25/Add.2).

16. The Working Group visited the United States of America from 20 July to 3 August 2009. The Working Group found that the Government of the United States relies heavily on the private military and security industry in conducting its worldwide military operations. American PMSCs dominate this new industry, estimated to earn US$ 20 to 100 billion annually. Private forces constitute about half the total United States force deployed in Afghanistan and Iraq.

17. The Working Group noted that the information accessible to the public on the scope and type of contracts between the Government of the United States and PMSCs is scarce and opaque. The lack of transparency is especially significant when companies subcontract to others. The situation is particularly opaque when United States intelligence agencies contract PMSCs. Given the agencies’ power to invoke confidentiality in the interest of national security, the public does not have access to information on the company hired, the activities it has been contracted to carry out or the area of deployment.

18. The Working Group discussed with the authorities cases which raised concerns about the extent to which private security companies, hired for defensive guard duty, have joined in offensive military and intelligence operations and the existing close relationship between the intelligence agencies and PMSCs.

19. The Working Group examined information received with regard to the American company now known as Xe/Blackwater which had its licence revoked in Iraq following the shooting by its personnel of innocent civilians in Nisour square in Baghdad which killed 17 civilians and severely injured more than 20 others on 16 September 2007. According to a congressional report on the conduct of Blackwater in Iraq, Blackwater guards were found to have been involved in nearly 200 escalation-of-force incidents that involved the firing of shots — with Xe/Blackwater firing the first shots in 80 per cent of the shooting incidents — in Iraq since 2005. Despite the decision of the Iraqi authorities and the congressional reports, Xe/Blackwater was still operating in Iraq at least until September 2009.

20. The Working Group also reported on the alleged involvement of two United States-based corporations, CACI and L-3 Services (formerly Titan Corporation) in the torture of Iraqi detainees at Abu Ghraib prison, Iraq. CACI and L-3 Services were the United States Government contractors responsible for interrogation and translation services respectively at Abu Ghraib and other facilities in Iraq.

21. The Working Group noted that the Government of the United States had taken serious corrective action and welcomed the recent adoption by the American authorities of legislation and regulations aimed at strengthening further the oversight and accountability of PMSCs. It observed that the clarification of applicable jurisdiction had yet to lead to successful prosecutions and punishment of those responsible for human rights abuses and other crimes. The full report and recommendations aimed at improving the American oversight mechanism and at ensuring accountability can be found in an addendum to this report (A/HRC/15/25/Add.3).

22. The Working Group is planning a visit to Equatorial Guinea from 16 to 21 August 2010. The Working Group will focus its visit on the measures taken by the Government in the context of the attempted coups d’йtat conducted by mercenaries in 2004 and thereafter, including the judicial proceedings related to these cases. It will also study all relevant legislation in force regarding mercenary activities, together with the activities of PMSCs operating in the country.

23. The Working Group has also been invited to visit South Africa during the course of the year to discuss the current efforts of the Government to ensure oversight and monitoring of the activities of South African PMSCs and their personnel operating abroad.

D. Regional consultations

24. In accordance with General Assembly resolution 62/145 and Human Rights Council resolution 7/21, the Working Group held its three remaining regional consultations during the period covered in this report.

25. After the first consultation for Latin America and the Caribbean held in Panama in December 2007[2] and the second in Moscow for Eastern Europe and Central Asia[3] held in October 2008, the Working Group held regional consultations in Bangkok in October 2009 for Asia and the Pacific, in Addis Ababa in March 2010 for Africa, and in Geneva in April 2010 for the Western European and Others Group. Reports on each of these last three consultations are available as addenda to this report.

26. Participants at the consultation for Asia and the Pacific noted that PMSCs were on the rise and active worldwide and that the legal framework applicable to these groups needed to be clarified and further strengthened. Participants exchanged views on their national experience with PMSCs, with the representatives of Afghanistan and Fiji giving comprehensive presentations on the situation of PMSCs in their respective countries. The Working Group presented elements of its proposed draft convention on PMSCs for discussion.[4]

27. The consultation in Addis Ababa was attended by representatives of 20 African countries and by representatives from the African Union Commission. Participants provided comprehensive information on and engaged in discussion of recent mercenary activities on the continent and their impact on human rights, together with the growing activities of PMSCs in Africa. The Working Group presented the elements of the draft convention in some detail and States expressed strong support for the work done by the Working Group on the preparation of this text.[5]

28. The most recent consultation, originally planned for October 2010 in Madrid, Spain, took place in April 2010 in Geneva with the representatives of Western European and Others Group (WEOG). The discussion focused on initiatives taken at the national and regional level by Western States as well as on elements for a possible new draft Convention as circulated by the Working Group to all Member States in early January 2010. The Working Group expressed its appreciation for the constructive comments on the document. While the Working Group noted the reservations of the EU and others with regard to a possible new convention on the issue, it underlined the shared goal of more effective regulation of the private security industry to ensure protection of individuals from human rights violations and ensure that when they occur, those responsible are held accountable and that victims have access to effective remedies.[6]

E. Other activities of the Working Group members

29. On 27 May 2010, the Chair of the Working Group, Mr. Gуmez del Prado, gave a presentation on the regulation, monitoring and oversight of PMSCs at a seminar at the Centro de Estudios Internacionales of the University of Barcelona. Academics, representatives of civil society, the armed forces, and security companies, the media, experts and diplomats participated at this event. From 31 May to 2 June 2010, he participated in an international drafting committee of independent experts at the Parliament of Catalonia on the development of a universal declaration on the human right to peace, an initiative under the Barcelona Declaration. Mr. Gуmez del Prado focused his input on the implications of mercenary and PMSC activities for the enjoyment of human rights, and in particular on the accountability of PMSCs and their personnel.

30. Ms. Benavides de Pйrez led a regional conference on mercenaries and PMSC activities in Latin America on 7–8 May 2009 in Bogota. The event was organized by the Universidad Externado de Colombia and the Javeriana University and gathered more than 150 experts, academics and civil society organizations, including representatives from the OHCHR Office in Colombia, the International Committee of the Red Cross in Colombia, of the “Regulating the Privatization of War” project, the European University Institute and a large number of NGOs. On 8 February 2010, Ms. Benavides de Pйrez gave a lecture on “Privatization of security: challenges and risks for the international community” at the Universidad de Antioquia, Medellнn, Colombia. She also presented a paper on “PMSCs in the context of international humanitarian law” on 5 April 2010 at the Cбtedra Von Humboldt, Universidad Jorge Tadeo Lozano, Bogota. Finally, at a discussion on “Accountability for Private Security Contractors? The role of the UN” on 19 May 2010, organizers from the Global Policy Forum and The Hague Appeal for Peace read an opening statement by Ms. Benavides.

III. Progress towards the elaboration of a possible new draft convention on private military and security companies

31. In this chapter, the Working Group reports on the progress achieved towards the elaboration of a possible new draft convention on private military and security companies. It discusses the context, purpose, scope and content of such a convention. It also presents a summary of the consultation process in which it has engaged in accordance with resolution 10/11 of 26 March 2009 and a summary of the responses received from States, non-governmental entities and the academic sector. A draft of a possible international convention on private military and security companies is presented as an annex to this report.

A. Context and purpose

32. The Working Group has repeatedly expressed its concern regarding the impact of the activities of PMSCs on the enjoyment of human rights. In its mission reports it has provided detailed information regarding grave human rights violations perpetrated by their employees, in particular when operating in conflict or post-conflict areas, and the lack of transparency and accountability of PMSCs. These concerns are based on the findings of the Working Group, particularly following its missions to countries where PMSCs are operating such as Afghanistan, where PMSCs are registered such as the United States of America and the United Kingdom and countries where personnel are being recruited such as Fiji and several Latin American countries.

33. The use of local and international PMSCs has impacted on the enjoyment of human rights in several countries, in particular where the industry has remained unregulated. For example, PMSCs have been drawn into military-type activities when operating in volatile areas and have been involved in combat and in many incidents involving the use of firearms.

34. Furthermore, several of these incidents have highlighted the blurring of the lines of responsibility between PMSCs and States, whether home States, contracting States or States of operations. In some instances, the identity and chain of command between the PMSCs and the client have remained unclear and have led to situations where no one has been held accountable.

35. In a letter dated 23 April 2010 to Member States, the Working Group summarized the core rationale for its proposals for the adoption of a new international legal instrument aimed at developing standards for the regulation, monitoring and oversight of the activities of PMSCs. The main arguments are presented below.

36. As stated in its previous report to the HRC (see A/HRC/10/14/Add.2), the Working Group assessed the existence of a regulatory gap covering the activities of PMSCs at the international level. While a number of rules under international humanitarian law and human rights law could apply to States in their relations with PMSCs, the Working Group observed that there have been difficulties in the application of domestic laws, in particular for international PMSCs operating in a foreign State, as well as difficulties in conducting investigations in conflict zones. The effect of this situation is that PMSCs are rarely held accountable for violations of human rights. Although there have been efforts to address this glaring gap over the years, accountability of private military and security contractors continues to be a challenge, with a startling lack of prosecutions.

37. The second argument in favour of an international legal instrument is linked to the very nature of the PMSC industry and its impact on the enjoyment of human rights. The Working Group believes that services provided by PMSCs should not be considered ordinary commercial commodities that can be regulated through self-regulation initiatives. The services provided by PMSCs are highly specific and dangerous and involve trade in a wide variety of military and security services, which call for the development of international standards and oversight mechanisms.

38. The third reason relates to the fact that PMSC personnel cannot usually be considered to be mercenaries, according to the definition of mercenaries as set out in article 47 of Additional Protocol I to the Geneva Conventions of 12 August 1949 relating to the Protection of Victims of International Armed Conflicts and in article 1 of the International Convention against the Recruitment, Use, Financing and Training of Mercenaries of 4 December 1989. The definition of mercenaries as used in those two conventions does not generally apply to the personnel of PMSCs legally operating in foreign countries.

39. The aim of a new binding legal instrument is not the outright banning of PMSCs but to establish minimum international standards for States parties to regulate the activities of PMSCs and their personnel. In addition, the Working Group, concerned about the extensive outsourcing of military and security functions and the growing role of PMSCs in armed conflicts, post-conflict and low-intensity armed conflict situations recommends prohibiting the outsourcing of inherently State functions to PMSCs in accordance with the principle of the State monopoly on the legitimate use of force. These functions are detailed later in the report.

40. The proposed convention would reaffirm the responsibilities of States regarding the activities of PMSCs. States are responsible for implementing their obligations under international human rights law, including by adopting such legislative and other measures as may be necessary to give effect to these obligations. To this end they have the obligation to take appropriate measures to prevent, investigate, punish and provide effective remedies for misconduct by PMSCs and their personnel. These legal responsibilities of States, which remain even if States choose to contract out certain activities, have been emphasized by the Human Rights Committee. The Committee stated that “the contracting out to the private commercial sector of core State activities which involve the use of force and the detention of persons does not absolve a State party of its obligations under the Covenant”.[7]

41. Finally, the proposed new legally binding instrument is aimed at ensuring that States take the necessary measures to promote transparency, responsibility and accountability in their use of PMSCs and their personnel, and establish mechanisms for the rehabilitation of victims.

42. The Working Group believes that the Human Rights Council would constitute the best forum for the development of a new international instrument for the regulation, oversight and monitoring of PMSCs, toaddress the above-mentioned challenges, inter alia.

B. Scope of application

43. Given that intergovernmental organizations, such as the United Nations, the North Atlantic Treaty Organization (NATO), the European Union and others are using the services of PMSCs, the Working Group considers it important to establish a framework by which such organizations may adhere to the convention within the limits of their competence with respect to PMSCs, their activities and personnel.

44. Drawing on the example of the most recent international convention to enter into force, the Convention on the Rights of Persons with Disabilities, which establishes in its article 44 that regional integration organizations shall be treated as States parties in matters within their competence, the Working Group included a similar clause in its draft convention.

45. Article 3 of the draft text states that the proposed convention applies to States and intergovernmental organizations, within the limits of their competence, with respect to PMSCs, their activities and personnel.

46. Finally, the draft convention specifies that it would apply to all situations whether or not the situation is defined as an armed conflict.

C. Content

47. The draft convention as annexed to the report is in six parts.

48. The preamble reaffirms, inter alia, the relevant principles and rules of international human rights and international humanitarian law, expresses concerns about the increasing delegation or outsourcing of inherently State functions which undermine any State’s capacity to retain its monopoly on the legitimate use of force, reiteratesthat responsibility for violations of international human rights and humanitarian law may be imputable not only to States but also to intergovernmental organizations and non-State actors, recallsthe International Law Commission’s Articles on State Responsibility,andthe international commitment to prevent impunity for war crimes, crimes against humanity, genocide and grave breaches of the Geneva Conventions, acknowledgesthe duty of all States to prevent human rights violations through legislative and other measures, the duty to investigate reports of violations and, where appropriate, prosecute and punish offenders and to provide effective remedies to the victims, and also acknowledges the duty of all States to prevent violations of human rights or other abuses committed by or involving transnational corporations and other business enterprises considers that victims of human rights violations have the right to effective remedies, and declares that mechanisms must be devised to ensure the accountability of States, intergovernmental organizations and PMSCs.

49. The general provisions of the draft convention are set out in Part I and include the purpose, definitions, and scope of application. The purposes of the present convention are:

• To reaffirm and strengthen the State responsibility for the use of force and reiterate the importance of the State monopoly of the legitimate use of force

• To identify those functions which are inherently State functions and which cannot be outsourced under any circumstances

• To regulate the activities of PMSCs and subcontractors

• 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.

55. This part also covers areas such as the liability of legal persons and entities, the establishment of States’ jurisdiction, the obligations related to prosecution and extradition measures. The draft instrument also provides for the establishment of an international fund for the rehabilitation of victims.

56. Part V deals with the establishment of a committee on the regulation, oversight and monitoring of PMSCs. In accordance with established procedures in international human rights treaties, the committee would receive reports by States parties on the legislative, judicial, administrative or other measures which they have adopted and which give effect to the provisions of this convention. The draft convention also envisages an inquiry procedure and an individual complaint procedure. It would also receive complaints from States parties which consider that another State party is not giving effect to the provisions of the Convention and set up an ad hoc conciliation commission if deemed necessary. The draft also proposes that the Secretary-General establish an international register of PMSCs operating on the international market based on information provided by States parties. Each State party would provide data annually for the Register on imports and exports of military and security services of PMSCs and standardized information on PMSCs registered in and licensed by the State party.

57. Part VI lists the final provisions, including the ratification, entry into force, amendments and reservations, and is also based on provisions existing in other human rights conventions.

D. Comments from Member States and non-governmental entities

1. Process

58. In accordance with Human Rights Council resolution 10/11 of 20 March 2009, the Working Group organized a series of consultations with a wide range of stakeholders on the content and scope of a possible draft convention from July 2009 to May 2010.

59. An initial draft text of a possible convention was circulated on 15 July 2009 to some 250 experts, academics and NGOs for comments. They were given until the end of September 2009 to provide their input on the content and scope of the Convention. The Working Group received some 45 written submissions from this group in response to its letter, comprising a total of over 400 comments.[8]

60. During their seventh session in New York in July 2009, the Working Group held two events organized by the International Peace Institute (IPI). The first was a lunchtime policy forum to explore current efforts inside and outside the United Nations to develop a more effective system of international regulation, oversight and accountability. Speakers included Peter Maurer, Ambassador of Switzerland, James Cockayne, International Peace Institute (IPI) Senior Associate and Shaista Shameem, as Chairperson-Rapporteur of the Working Group. The event attracted over 50 participants from embassies, the United Nations and from civil society.

61. The second event was a four-hour closed-door workshop with experts and civil society representatives, primarily based in the United States, to discuss the content and scope of a possible legal instrument for the regulation of PMSCs. The event gathered over 20 participants and provided an initial opportunity for the Working Group to discuss, in particular, the question of inherently State functions that should not be outsourced to PMSCs and the system of implementation and enforcement provided for in the draft convention.

62. This meeting was extremely useful to the Working Group to have an initial discussion with experts on the scope, content and oversight mechanism provided for in the convention. This greatly assisted the Working Group in addressing some of the key elements of the draft as well as some potential gaps. The Working Group takes this opportunity to thank the IPI for organizing and hosting these two important events.

63. On 25 July 2009, at a meeting held by the Colombian Academic Network on Privatization of Security, Ms. Benavides de Pйrez led a panel of experts discussion of the proposed draft convention in Bogotб, Colombia. A similar meeting was held in Quito, Ecuador, which gathered 25 representatives of NGOs and of the academic sector on 26 August 2009. The conclusions and recommendations of both meetings were sent to the Working Group. The Working Group expresses its gratitude to the OHCHR Office in Colombia and Ecuador for hosting these two meetings.

64. Through one of its members, Josй L. Gуmez del Prado, the Working Group also collaborated with a network of Spanish academics from 15 Spanish Universities, the Spanish Red Cross Centre for the Study of International Humanitarian Law, the Institute of Studies on Conflict and Humanitarian Action and NGOs regarding the elaboration of the draft convention. In this regard, a closed-door seminar organized by the Law Faculty of the Universidad Espaсola de Educaciуn a Distancia (UNED-the Spanish Open University) took place in Madrid, on 19–20 November 2010. During the seminar a number of constructive and practical recommendations were made which have contributed to improving the draft text.

65. From September to December 2009, the Working Group considered the comments received from all the above-mentioned stakeholders and drafted an amended version of the draft convention.

66. In a second phase and in accordance with the above-mentioned resolution which requests the Working Group to “share with Member States, through the Office of the United Nations High Commissioner for Human Rights, elements for a possible draft convention on private military and security companies, request their input on the content and scope of such convention and transmit their replies to the Working Group”, the Working Group prepared a “Note on elements for a possible draft convention on Private Military and Security Companies (PMSCs)” for Member States’ comments. This nine-page note was sent by note verbale on 4 January, with feedback requested by 15 March 2010. The deadline for comments was later extended to 15 May 2010.

67. The Working Group received written submissions from Australia, Azerbaijan, Belarus, Canada, Cuba, Ecuador, Egypt, Guatemala, Lebanon, Qatar, Russian Federation, Serbia, Slovenia, South Africa, Spain (on behalf of the European Union), Switzerland, Trinidad and Tobago, the United Kingdom of Great Britain and Northern Ireland and the United States of America.[9]

68. The Working Group also received written submissions from the institutions of the Commonwealth of Independent States (CIS).[10]

69. In parallel to this process, the Working Group also received feedback on the ideas contained in the draft elements during the three regional consultations held in Bangkok, Addis Ababa and Geneva. In addition, the Working Group also organized briefings for all permanent missions in Geneva during its session in April 2010.

2. General comments

70. Many States and experts underlined their general support for a convention, highlighting the need to strengthen the legal obligations vis-а-vis PMSCs and to put in place a licensing and registration system. They also underlined the key role for the United Nations in monitoring the activities of PMSCs.

71. One country said that the draft convention should emphasize States parties’ obligations to implement all international obligations, not only the norms of international human rights and humanitarian law.

72. Another comment raised the question of the legal status of the personnel of PMSCs which is not addressed in the draft text. It underlined that one of the objectives of a future convention should be the adoption of an international legal definition of the status of PMSCs, the establishment of criteria for the legalization of their activity, and distinguishing between the activities of PMSCs and other traditional forms of mercenarism.

73. Others raised the opinion that a treaty may not be the most effective way of improving oversight and accountability for the industry and argued that existing laws provided an effective framework for understanding States’ obligations to regulate PMSCs and hold them accountable. They referred to other existing initiatives, in particular the Montreux Document,[11] which recalls existing obligations of States, PMSCs and their personnel under international law whenever PMSCs are present during armed conflict.

74. The industry conveyed to the Working Group that it is seeking to obtain greater clarity vis-а-vis its legal standing and greater validity in its public perception. The industry underlined the importance of having a treaty that enjoys the support of the key players involved in the debate in order to make a positive impact on the enjoyment of human rights by individuals.

3. Scope of the Convention

75. Some of the comments received revolved around the direct applicability of some obligations outlined in the draft convention to PMSCs, i.e. non-State actors. The Working Group considered that the key responsibility should lie with the States parties to the convention and the intergovernmental organizations that would adhere to the instrument. The Working Group clarified this point in its most recent text.

76. A significant number of experts stressed that the scope of the draft convention should seek to be as broad as possible and cover all situations, not only armed conflict, recognizing the ever-evolving range of activities carried out by PMSCs in increasingly diverse situations around the world. This comment was addressed in the draft text.

4. Domestic implementation

77. Some comments emphasized that the mandatory licensing regime established in the draft convention has the advantage that by requiring the consent of both the exporting and importing State, it ensures that all States involved will have effectively given their formal consent to the operations taking place. It would also make it easier to determine which PMSC is operating where and when.

78. Others regretted that the draft text did not specify criteria for awarding licences and that the decision to award licences would remain with States parties. They said that this could lead to situations where licences would be granted to companies that do not abide by international standards.

79. Some pointed out that the convention could go further by proposing that a licensing system be established at the international level, administered by an intergovernmental body. This, they said, would provide a central, directly accessible register, thereby avoiding the need to rely on individual State registries.

80. The idea of the creation of a special fund to compensate victims of crimes committed by PMSC personnel was welcomed by many. Some however emphasized that the draft text could go further with respect to the functioning and methods of work of the fund, such as by defining the notion of “victim”, the amounts for compensation and for States’ contributions, and the existing correlation between the obligations of PMSCs and States to compensate victims.

81. Some States made the point that the proposed legislative regulation, licensing regime, contracting and training requirements, oversight and monitoring outlined in the draft convention might place a high implementation cost on States, which might be a disincentive to ratification. Further, some raised concerns as to usefulness of requiring States to establish domestic licensing regimes where such regimes were likely to differ significantly from jurisdiction to jurisdiction.

5. Inherently State functions

82. A number of experts and States stressed that there is no agreed definition in international law on what constitutes inherently governmental functions and considered that defining such functions could prove difficult.

83. Others stated that it was crucial to establish clear standards for PMSCs and their activities given the growing trend towards the delegation of military and security functions to private actors. They said that such an instrument was essential to ensure that the State retains the monopoly on the use of force. Some considered the proposed distinction presented in the draft convention between inherently State functions that cannot be outsourced and services that can be delegated to PMSCs to be satisfactory, while others called for a more restrictive approach.

84. Some recalled that while there is no internationally agreed definition of inherently State functions, certain provisions of international humanitarian law specifically precluded Member States from outsourcing the performance of certain tasks such as the exercise of “the power of the responsible officer over prisoner of war camps or places of internment of civilians” (see article 39 of the Third Geneva Convention; article 99 of the Fourth Geneva Convention). They added that while there is no specific prohibition on the direct participation by civilians in hostilities, their participation would at the least lead to the loss of certain privileges, such as immunity from attack.

6. International oversight and monitoring body

85. A number of comments called for any adjudicatory or grievance mechanism to be established by the convention that should operate with full transparency; others expressed disappointment that the individual right to petition the Committee is only given in respect of those countries that consent to such a process.

86. One State pointed out that the provision regarding the conciliation commission was not sufficiently detailed and did not specify what would happen if a State did not accept the recommendations of the conciliation commission and, if accepted, who would be responsible for implementing these recommendations. Some also thought that a confidential, inter-State dispute resolution mechanism of this type was not necessary to ensure the implementation of the Convention.

87. Other comments cautioned that the need for transparency must not overshadow privacy rights or lead to a freezing of cooperation from the industry itself.

88. Finally some experts raised the point that special attention would need to be paid to ensuring that less developed States have support to strengthen their capacity to regulate PMSCs, both through the technical assistance of the Committee and through funding.

IV. Conclusions and recommendations

89. The Working Group takes this opportunity to thank all Member States and non-governmental entities including experts and academics who have engaged with the Working Group on this important endeavour, have provided their expertise throughout this process and submitted constructive comments on the elements for a possible international draft convention on PMSCs.

90. The Working Group would like to emphasize its utmost concern at the impact of the activities of PMSCs on the enjoyment of human rights, in particular when operating in conflict, post-conflict or low-intensity armed situations and notes that PMSCs and their personnel are rarely held accountable for violations of human rights.

91. The aim of a proposed new binding legal instrument is not the outright banning of PMSCs but the establishment of minimum international standards for States parties to regulate the activities of PMSCs and their personnel.

92. The Working Group believes that the Human Rights Council would constitute the best forum for the development of a new international instrument for the regulation, oversight and monitoring of PMSCs, toaddress the human rights impact of the activities of PMSCs.

93. It encourages Member States to carefully consider the present draft proposal for a possible new international legal instrument regulating PMSCs and recommends that the Human Rights Council establish an intergovernmental open-ended Working Group with the task of developing a new convention taking into account the initial work done by the Working Group on the use of mercenaries.

Annex

Draft of a possible Convention on Private Military and Security Companies (PMSCs) for consideration and action by the Human Rights Council

The Parties to the present Convention,

PP 1: Reaffirming the General Principles enshrined in the Charter of the United Nations, the erga omnes obligations related to the protection of human rights and the strict adherence to principles of the sovereign equality of all States, the territorial integrity and political independence of every State, the right of self-determination of peoples, the prohibition of the threat, or the use of, force in international relations, the prohibition of propaganda for war and the prohibition of interference in affairs which are essentially within the domestic jurisdiction of any State,

PP 2: Further reaffirming the principles and rules of international human rights and humanitarian law and their complementarity,

PP 3: Bearing in mind the universal principle of non-discrimination contained in all international human rights instruments and the basic labour rights recognized in the ILO conventions,

PP 4: Recalling the International Law Commission’s Articles on State Responsibility,

PP 5: Conscious of the international commitment to prevent impunity for war crimes, crimes against humanity, genocide and grave breaches of the Geneva Conventions, and affirming in this connection the principles contained in the Statute of Rome of the International Criminal Court,

PP 6: Acknowledging the duty of all States to prevent human rights violations through legislative and other measures, the duty to investigate reports of violations and, where appropriate, prosecute and punish offenders as well as to provide adequate remedies to victims,

PP 7: Further acknowledging the duty of all States to prevent violations of human rights or other abuses committed by or involving transnational corporations and other business enterprises,

(h) Import of military and/or security services: refe