Preamble

 

The preamble makes reference inter alia to:

• The General Principles enshrined in the Charter of the United Nations: the erga omnes obligations related to the protection of human rights, the principles of sovereign equality of all States, the territorial integrity and political independence of every State, the right of peoples to self-determination, and the prohibition of the threat and use of force in international relations;
• The principles and rules of international human rights and humanitarian law and their complementarity;
• The principles contained in the Rome Statute of the International Criminal Court and the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes;
• The duty of all States to prevent abuses of international human rights and humanitarian law or other abuses committed by or involving transnational corporations and other business enterprises;
• 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 the victims;
• The United Nations Code of Conduct for Law Enforcement Officials; the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials; the United Nations Non-Binding Guidelines on the Use of Military or Armed Escorts for Humanitarian Convoys; the Montreux Document of 17 September 2008 on pertinent international legal obligations and good practices for States related to operations of private military and security companies during armed conflict; the UN Global Compact initiative for businesses;
• The increasing outsourcing of inherently State functions which undermine ay State’s capacity to retain its monopoly on the legitimate use of force;
• The increasing and alarming cases of abuses of international human rights law and international humanitarian law committed by PMSCs and their personnel, and aware of the pressing need to establish effective measures to ensure that PMSCs activities are carried out in accordance with international law;
• The fact that self-regulation of private military and security companies is insufficient to ensure the observance of international human rights law and international humanitarian law by the personnel of these companies;
• The urgency for State Parties to agree on international minimum legal standards to regulate and monitor the activities of PMSCs.

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Purposes of the Convention:

 

The purposes of this Convention are to:

§ Reaffirm and strengthen the State responsibility for the use of force within the comprehensive framework of State obligation to respect, protect and fulfill human rights, and to provide remedies for victims of human rights violations;

§ Identify those functions which are inherently State functions and which cannot be outsourced under any circumstances;

§ Regulate the activities of PMSCs and sub-contractors;

• 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 of peoples to self-determination;
• 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, prosecute the violators and provide remedies to the victims. (Art. 1)

 

 

Definitions:

 

The convention proposes a number of definitions, including the following:

• Private Military and/or Security Company (PMSC): a corporate entity which provides on a compensatory basis military and/or security services by physical persons and/or legal entities.
• Military services: 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.
• Security services: 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.
• Export of military and/or security services: an export of military and/or security services from the home State in which a PMSC is registered or export of military and/or security services which a PMSC provides outside the State in which it is registered or where it has its principle place of management or headquarters.
• Import of military and/or security services: an import of military and/or security services which a PMSC registered in a foreign State provides.
• Inherently State functions: functions, which are consistent with the principle of the State monopoly on the legitimate use of force and that a State cannot outsource or delegate to PMSCs under any circumstances. Among such functions are 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 and other functions that a State Party considers as inherently State functions.
• Contracting States: States that directly contract with PMSCs for their services, including, as appropriate, where such a company subcontracts with another PMSC or where a PMSC operates through its subsidiary companies.
• States of operations: States on whose territory PMSCs operate.
• Home States: States of nationality of a PMSC, i.e. where a PMSC is registered or incorporated; if the State where the PMSC is incorporated is not the one where it has its principal place of management, the State where the company has its principal place of management or headquarters is the home State.
• Third States: States other than the contracting, home States or States of operations whose nationals are employed to work for a PMSC. (Art.2)

 

 

Scope of application:

 

• The present Convention applies to States and inter-governmental organizations within the limits of their competence with respect to PMSCs, their activities and personnel.
• References to "States Parties" in the present Convention shall apply to inter-governmental organizations within the limits of their competence.
• The present Convention applies to all situations whether or not the situation is qualified as an armed conflict. (Art.3)

 

General Principles:

 

The Convention is based on the following principles:

 

• State responsibility vis-а-vis private military and security companies

- Each State party bears responsibility for the military and security activities of PMSCs registered or operating in their jurisdiction, whether or not these entities are contracted by the State.

- Each State party must ensure that the PMSCs it has contracted are trained in and respect international human rights and international humanitarian law.

- No State Party can delegate or outsource inherently State functions to PMSCs.

- Each State Party shall take such legislative and other measures as may be necessary to establish procedures for contracting PMSCs, licensing procedures for the export and import of military and security personnel and services; and the effective customs and other forms of control over export/import and re-export/re-import of firearms used by PMSCs.

- Each State Party, in accordance with its domestic law, shall take legislative and other measures required to introduce full or partial prohibition on the delegation or outsourcing of military and/or security services.(Art.4)

 

• Rule of law

- Each State Party shall ensure that PMSCs, their personnel and any structures related to their activities perform their respective functions under officially enacted laws consistent with international human rights and humanitarian law.

- Each State Party shall take such legislative, administrative and other measures as may be necessary to ensure that PMSCs and their personnel are held accountable for violations of applicable national or international law.

- Each State Party shall ensure that any contract or agreement between the State party and a PMSC on provision of military and/or security services entered into by a PMSC as well as its employees is in accordance with international law and is consistent with the legislation of the home State, the contracting State, the State of operations and third States whose nationals are employed to work for a PMSC under this contract.(Art.5)

 

• State sovereignty

- States Parties shall ensure that PMSCs under no circumstances carry out activities that undermine the sovereignty of another State, its territorial integrity and/or that contravene to the principle of sovereign equality and obligation of non-intervention in the domestic affairs of other States and the principle of self-determination of peoples.

- Nothing in this Convention entitles a State Party to undertake in the territory of another State the exercise of jurisdiction and performance of inherently State functions under international as well as domestic laws.(Art.6)

 

• Respect and protection of international human rights and humanitarian law

- Each State Party shall take legislative, judicial, administrative and other measures as may be necessary to ensure that PMSCs and their personnel are held accountable in accordance with this Convention and to ensure respect for, and protection of international human rights and humanitarian law.

- Each State party shall ensure that PMSCs and their personnel apply due diligence to ensure that their activities do not contribute directly or indirectly to violations of human rights and international humanitarian law.

- Superiors of PMSC personnel, such as:

a. governmental officials, whether they are military commanders or civilian superiors, or

b. directors or managers of PMSCs,

may be liable for crimes under international law committed by PMSC personnel under their effective authority and control, as a result of their failure to properly exercise control over them, in accordance with the rules of international law. No clause in a contract shall be interpreted as evading superiors’ responsibility under international law.(Art.7)

 

• Prohibition of the use of force

- Each State party shall take such legislative, administrative and other measures as may be necessary to make it illegal for and prohibit PMSCs and their personnel to directly participate in hostilities, terrorist acts and military actions aimed at, or which States have grounds for suspecting would result in the overthrow of a government; the coercive change of internationally acknowledged borders of the State; the violation of sovereignty; explicitly targeting civilians or causing disproportionate harm;

- Each State party shall ensure that the activities of PMSCs and their personnel do not cause or exacerbate inter or intra-state warfare or conflict;

- Each State party shall ensure that PMSCs and their personnel do not provide training that could facilitate its client’s direct participation in hostilities, terrorist acts and military actions.(Art.8)

• Prohibition of delegation and/or outsourcing inherently State functions

- Each State Party shall define and limit the scope of activities of PMSCs and specifically prohibit the outsourcing to PMSCs of functions which are defined as inherently State functions,.(Art.9)

 

• Prohibition of outsourcing the use of certain arms

- Each State Party, without prejudice to its respective conventional obligations, has the duty to respect the principles of international humanitarian law such as the “basic rules” on the prohibition of certain methods and means of warfare as set out in art. 35 of Additional Protocol I of 1977 to the Geneva Conventions of 1949, that refers to the prohibition of weapons which cause superfluous injury or unnecessary suffering, or which are to cause widespread, long-term and severe damage to the natural environment.

- Each State party shall take such legislative, administrative and other measures as may be necessary to prevent PMSCs and their personnel from using weapons likely to adversely and/or irreversibly damage the environment on a massive scale.

- Each State Party shall take such legislative, judicial, administrative and other measures as may be necessary to ensure that PMSCs and their personnel under no circumstances use, threaten to use and/or engage in any activities related to nuclear weapons, chemical weapons, biological and toxin weapons, their components and carriers.(Art.10)

 

• Prohibition of illegal acquisition, illegal possession or trafficking of firearms, their parts and components and ammunition.

- Each State Party shall establish and maintain an effective system of licensing or other authorization, which prohibits PMSCs, their personnel and any sub-contracted personnel from trafficking in firearms, their parts, components or ammunition.

- Each State Party shall take such measures as may be necessary to ensure that its licensing or authorization procedures are robust and secure and that the authenticity of licensing or authorization documents can be independently verified or validated.

- Each State party shall regulate the possession and use of firearms by personnel of PMSCs inside the premises of the client they have been contracted to protect, and to restrict them from possession and use of firearms outside the limits of the premises in which they have been contracted to provide security.Art.11)

 

 

National legislative regulation, oversight and monitoring:

 

• Specific legislative regulation

- Each State Party shall develop and adopt national legislation to adequately and effectively regulate the activities of PMSCs. (Art.12)

• National regime of regulation and oversight

- Each State Party shall establish a comprehensive domestic regime of regulation and oversight over the activities in its territory of PMSCs and their personnel including all foreign personnel, in order to prohibit and investigate illegal activities as defined by this Convention as well as by relevant national laws;

- States Parties shall apply practical measures for sharing information on companies providing military and security services outside their territories and for establishing control over the provision of such services, as consistent with the safeguards aimed at ensuring the proper use of information without impeding their legal implementation in any way.

- States Parties shall endeavor to develop and encourage global, regional, sub-regional and bilateral cooperation among judicial bodies and law enforcement agencies as well as financial regulation bodies in order to monitor and control any use of force by PMSCs.

- States Parties shall investigate reports of violations of international humanitarian law and human rights norms by private military companies and private security companies and ensure civil and criminal prosecution and punishment of offenders.

- States Parties shall take appropriate action against companies that commit human rights violations or engage in any criminal activity, inter alia by revoking their licenses and reporting to the Committee on the record of activities of these companies. (Art.13)

 

• Licensing

- Each State Party shall take such legislative, judicial, administrative and other measures as may be necessary to ensure that PMSCs and their personnel carry out their activities exclusively under the respective licences and authorizations.

- Each State party shall ensure that all licenses and authorizations issued to PMSCs and their personnel shall be registered in the general Registry of the State and shall be granted following a transparent and open procedure.

- Each State Party shall establish criteria to grant licenses and authorizations to PMSCs, taking into account in particular any records or reports of human rights violations committed by the companies, providing and/or ensuring training in international human rights and humanitarian law and the existence of robust due diligence measures.(Art.14)

 

• Licensing import and export of military and/or security services

- Each State Party shall take such legislative, judicial, administrative and other measures as may be required to ensure that PMSCs and their personnel import and export their services only under the respective licences and authorizations.

- Each State Party which imports or exports private military and security services shall publicize their scope and activities and keep the Committee informed about its licensing regime as well as provide regular and up-dated information on any changes and supplements to the import or export of these services, including details of any subsidiaries or holding companies of the PMSC in question.(Art.15)

 

• Registration and accountability

- Each State Party shall take such legislative, judicial, administrative and other measures as may be necessary to establish:

a. Specific and obligatory procedures on governmental registration of PMSCs;

b. Specific legal requirements for persons employed by PMSCs concerning inter alia their training and experience;

c. A ban on the registration of PMSCs in offshore zones.

- Each State Party shall establish and maintain a general State Registry of PMSCs operating in their jurisdiction, including information on any subsidiaries or holding companies of each registered PMSC.

- Each State Party shall identify or establish a governmental body responsible for the registration of PMSCs and exercise oversight over their activities.(Art.16)

• State obligations vis-а-vis PMSCs and their personnel

- Each State Party shall ensure that all PMSCs registered or operating on its territory comply with fundamental international labour standards.

- Each State party shall ensure that personnel of PMSCs are professionally trained to respect relevant international human rights law and international humanitarian law.

- Each State Party shall ensure that PMSCs personnel must be professionally trained and vetted according to the applicable international standards, in particular regarding the use of specific equipment and firearms.

- Each State Party shall ensure that personnel of PMSCs strictly adhere to relevant norms of international human rights law and international humanitarian law, including through prompt investigation, prosecution and punishment of violations of human rights and humanitarian law.

- Each State Party shall ensure that the personnel of PMSCs providing military and security services in the territory of a foreign country undertake to respect the sovereignty and laws of the country of operations. (Art.17)

• Regulation of the use of force and firearms

- Each State Party shall establish rules on the use of force and firearms by the personnel of PMSCs.

- State parties shall ensure that in providing military and security services, employees of PMSCs shall, as far as possible, apply non-violent means before resorting to the use of force and firearms.

- In providing military and security services, employees may use force or firearms only (a) to defend him/herself or other employees of the company against what he/she believes to be an imminent unlawful threat of death or serious body injury, in respect of the exercise of the essential right of self-defense; (b) to defend persons whom he/she is under a contract to protect against what he/she believes to be an imminent unlawful threat of death or serious body injury; (c) to resist what he/she reasonably believes to be an attempt to unlawfully abduct him/her, other employees of the company or a person whom he/she is under contract to protect; (d) to prevent or put a stop to the commission of a serious crime that would involve or involves a grave threat to life or of serious bodily injury.

- Each State party shall ensure that all incidents involving the use of force and firearms by PMSCs are promptly reported to the competent State bodies and ensure appropriate investigation of the incident by competent authorities. (Art.18)