V) Inherent State functions

76. 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.

77. Others stated that it was crucial to establish clear standards to 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 monopoly for the use of force remains in the domain of the State. Some found the proposed distinction presented in the draft convention between inherent state functions that cannot be outsourced and services that can be delegated to PMSCs satisfactory, while others called for a more restrictive approach.

78. Some recalled that while there is no internationally agreed definition of the inherent state functions, certain dispositions 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 Art. 39 of the Third Geneva Convention; Art. 99 of the Fourth Geneva Convention). They added that while there is no specific prohibition on civilians’ direct participation in hostilities, such participation would at a minimum lead to the loss of certain privileges, such as immunity from attack.