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43. The draft convention as annexed to the report is structured in six parts.
44. The preamble, among other things, reaffirms the relevant principles and rules of international human rights and international humanitarian law, expresses concerns about the increasing delegation or outsourcing of inherent 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 inter-governmental organizations and non-State actors, and states that mechanisms must be devised to ensure the accountability of States, inter-governmental organizations and PMSCs.
45. Part I enumerates the ‘General provisions’ of the draft convention and includes 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 inherent State functions and which cannot be outsourced under any circumstances;
§ to regulate the activities of PMSCs and sub-contractors;
§ 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.
46. Article 2 defines the terms used in the draft convention. In particular, it proposes to define PMSCs as “a corporate entity which provides on a compensatory basis military and/or security services by physical persons and/or legal entities”. Military services refer to specialized services related to military actions 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 refer to armed guarding or protection of buildings, installations, property and people, any kind of knowledge transfer with security and policing applications, elaboration and implementation of informational security measures and other related activities.
47. The Working Group describes inherent State functions as functions that cannot be outsourced to PMSCs. 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.
48. Part II of the draft instrument presents the general principles governing the treaty. The eight principles are the State responsibility vis-à-vis PMSCs to ensure their respect for international human rights and humanitarian law, respect for the rule of law by PMSCs, respect of State sovereignty by PMSCs, the State obligation to prohibit PMSCs from directly participating in hostilities, terrorist acts and military actions in violation of international law, the prohibition to outsource inherent State functions to PMSCs, including the use of certain arms which cause superfluous injury or unnecessary suffering and the prohibition for PMSCs and their personnel to illegally acquire, possess or traffic arms and ammunitions.
49. 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 personnel of PMSCs and respecting the fundamental labour standards and the regulation of use of force and firearms by PMSCs.
50. Part IV addresses the issues of States parties’ responsibility to impose criminal, civil and/or administrative sanctions on offenders and provide remedies to victims. The draft convention outlines State parties obligations to ensure that the acts of carrying out inherent State functions, the unlawful use of force and firearms, unlawful use of certain arms and illicit trafficking in arms by PMSCs and their personnel, are offenses under national legislation of State parties. In addition, all activities of PMSCs occurring without the required license and authorization are also considered as offenses. State parties are required to ensure that individual criminal responsibility is established and that PMSCs and their personnel are held accountable and that effective remedies are provided to victims.
51. 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 the extradition measures. The draft instrument also envisioned the establishment of funds for the rehabilitation of victims.
52. 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 is envisaged to 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 envisaged an inquiry procedure as well as an individual complaint procedure. It could also receive complaints from States parties that 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.
53. 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.