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A. Context and purpose
28. The Working Group has repeatedly expressed its concern at the human rights’ impact of PMSCs in particular when operating in conflict or post-conflict areas. These concerns are based on the findings of the Working Group particularly following its missions to countries where PMSCs are operating like Afghanistan, where PMSCs are registered as for the U.S. and the U.K. as well as countries where personnel are being recruited like Fiji and several Latin American countries.
29. The use of local and international PMSCs have impacted on the enjoyment of human rights in several countries, in particular when 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 as well as in many incidents involving the use of firearms.
30. Furthermore, several of these incidents have highlighted the blurring line of responsibilities existing between PMSCs and States, both contracting States and 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.
31. In a letter dated 23 April 2010 to all Member States, the Working Group summarized the core rationale for their proposals towards the adoption of a new international legal instrument aimed at elaborating standards for the regulation, monitoring and oversight of the activities of PMSCs. The main arguments are presented below.
32. As stated in its previous report to the HRC, the Group assessed the existence of a regulatory gap covering the activities of PMSCs at the international level. While a number of rules of international humanitarian law and human rights law apply to States in their relations with PMSCs, the Working Group observed that there have been challenges to the application of domestic laws in particular for international PMSCs operating in a foreign State. The extraterritorial application of domestic laws has also failed in practice because of the difficulties in conducting investigation in foreign countries. The effect of such situation is that PMSCs are rarely held accountable for violations of human rights. Though there have been efforts to address that glaring gap over the years, accountability of private military and security contractors continues to be a challenge with still a stunning lack of prosecutions.
33. The second argument in favour of an international legal instrument is linked to the very character of the PMSCs industry and its impact on the enjoyment of human rights. The Group believes that services provided by PMSCs should not be considered as ordinary commercial commodities that can be regulated through self regulation initiatives. The services provided by PMSCs are highly specific and involve the trade of a wide variety of military and security services which require the elaboration of international standards and oversight mechanisms.
34. The third reason relates to the fact that PMSC personnel cannot usually be considered as mercenaries, as per the definition of mercenaries as set in article 47 of the Additional Protocol I to the Geneva Conventions of 12 August 1949 and relating to the Protection of victims of international armed conflicts Geneva Convention as well as article 1 of the International Convention against the Recruitment, Use, Financing and Training of Mercenaries of 4 December 1989. The definition of mercenaries used in those two conventions cannot normally apply to personnel of PMSCs legally operating in foreign countries.
35. The aim of such binding legal instrument is not the outright banning of PMSCs but establishing minimum international standards for States parties to regulate the activities of PMSCs and their personnel. In addition, the Working Group, concerned with the extensive outsourcing of military and security functions and the growing role of PMSCs in conflict, recommends prohibiting the outsourcing of inherently state functions particularly in the military and security fields. These functions are detailed later in the report.
36. The new convention is reaffirming the responsibilities of States regarding the activities of PMSCs. States are responsible to implement 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 relevant misconduct of PMSCs and their personnel. These legal responsibilities of States which remain even if states choose to contract out certain activities have been emphasised 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”.
37. 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, as well as establish mechanisms for the rehabilitation of victims.
38. The Working Group believes that the United Nations would constitute the best framework for the elaboration of a new international instrument for the regulation, oversight and monitoring of PMSCs, to inter alia address the above mentioned challenges.