Right of peoples to self-determination 3 страница

– 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.

• Prohibition of delegation and/or outsourcing inherently State functions

(Article 9)

– 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.

• Prohibition of outsourcing the use of certain arms

(Article 10)

– 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 article 35 of Additional Protocol I of 1977 to the Geneva Conventions of 1949, which refers to the prohibition of weapons that cause superfluous injury or unnecessary suffering or that 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.

• Prohibition on illegal acquisition, possession and trafficking in firearms, their parts and components and ammunition

(Article 11)

– Each State party shall establish and maintain an effective system of licensing or other authorization, which prohibits PMSCs, their personnel and any subcontracted 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 restrict them from possession and use of firearms outside the limits of the premises in which they have been contracted to provide security.

National legislative regulation, oversight and monitoring

• Specific legislative regulation

(Article 12)

– Each State party shall develop and adopt national legislation to adequately and effectively regulate the activities of PMSCs.

• National regime of regulation and oversight

(Article 13)

– 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 the 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 endeavour to develop and encourage global, regional, subregional 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 licences and reporting to the Committee on the record of activities of these companies.

• Licensing

(Article 14)

– 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 licences 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 for granting licences 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.

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

(Article 15)

– 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 updated 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.

• Registration and accountability

(Article 16)

– 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.

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

(Article 17)

– 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 PMSC personnel are 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.

• Regulation of the use of force and firearms

(Article 18)

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

– States 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 bodily injury, in respect of the exercise of the essential right of self-defence; (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 bodily 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.

State responsibility to impose criminal, civil and/or administrative sanctions on offenders and provide remedies to victims

• Criminal, civil and/or administrative offences in the sphere of private military and security services

(Article 19)

– Each State party shall ensure that the acts of carrying out inherently State functions are offences under its national law.

– Each State party shall ensure that the unlawful use of force and firearms, unlawful use of certain arms and illicit trafficking in arms by PMSCs and their personnel are punished as criminal offences under its national law.

– Each State party shall ensure that all activities of PMSCs occurring without the required licence and authorization, including the export and import of military and security services are offences under its national law.

– Each State party shall take such legislative, judicial, administrative and other measures to ensure, in accordance with their obligations under international human rights law, international criminal law and international humanitarian law, that individual criminal responsibility is established and that PMSCs and their personnel are held accountable for any violations of the law, that no recourse is taken to immunity agreements, and that effective remedies are provided to victims.

– In relation to imposing penalties for offences listed in this article, due consideration should be paid to offences committed against vulnerable groups.

• Liability of legal persons and entities

(Article 20)

– Each State party shall adopt such measures as may be necessary, consistent with its legal principles, to establish the liability of legal persons and entities for the offences established in accordance with the convention.

– Subject to the legal principles of the State Party, the liability of legal persons may be criminal, civil or administrative or a combination of these.

– Such liability shall be without prejudice to the criminal liability of the natural persons who have actually committed the offences.

– Each State party shall, in particular, ensure that legal persons held liable in accordance with the convention are subject to effective, proportionate and dissuasive criminal or non-criminal sanctions.

• Establishment of jurisdiction

(Article 21)

– Each State party shall take such measures as may be necessary to establish its jurisdiction through its domestic law over the offences set out in the convention, when (a) the offence is committed in the territory of that State; (b) the offence is committed on board a vessel flying the flag of that State or an aircraft registered under the laws of that State at the time the offence is committed; or (c) the offence is committed by a national of that State.

– A State party may also establish its jurisdiction over any of the offences set out in the convention when (a) the offence is committed against a national of that State; or (b) the offence is committed by a stateless person who has his or her habitual residence in the territory of that State.

– The convention does not exclude any additional criminal jurisdiction exercised in accordance with national law.

• Obligations related to prosecution

(Article 23)

– Each State party shall take such measures as are necessary to investigate, prosecute and punish violations of the convention, and to ensure effective remedies to victims.

– Each State party in the interests of justice, shall take such measures as necessary to ensure that no immunity agreement from prosecution for PMSCs and their personnel for violations of international human rights law and international humanitarian law are enforced.

– Each State party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in the convention is found, shall in the cases contemplated in article 21, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.

• Extradition

(Article 24)

– To the extent that the crimes set out in the convention are not mentioned specifically in any extradition treaty existing between States parties, they shall be deemed to be included as extraditable offences in the treaty. States parties undertake to include such offences as extraditable offences in every extradition treaty to be subsequently concluded by them.

• Mutual legal assistance

(Article 25)

– The States parties shall afford one another mutual legal assistance in investigations, prosecutions and judicial proceedings in relation to the offences covered by the convention.

• Transfer of criminal proceedings

(Article 26)

– States parties may transfer to one another proceedings for the prosecution of offences under the convention in cases where such transfer is considered to be in the interests of the proper administration of justice.

• International fund for the rehabilitation of victims

(Article 28)

– States parties shall consider establishing an international fund to be administered by the Secretary-General to provide reparation to victims of offences under the convention and/or assist in their rehabilitation.

– The establishment of such a fund shall be without prejudice to the obligation of PMSCs and/or the individuals criminally liable to directly compensate victims of violations.

International Oversight and Monitoring

• Committee on the regulation, oversight and monitoring of PMSCs

(Article 29)

– For the purpose of reviewing the application of the convention, there shall be established a committee on the regulation, oversight and monitoring of PMSCs.

• International Register of PMSCs

(Article 30)

– States parties request the committee to establish and maintain an international register of PMSCs operating on the international market, based on information provided by States parties.

– Each State party shall provide annually for the register data on imports and exports of military and security services of PMSCs and standardized information on PMSCs registered in and licensed by the State party.

• Reports by States parties

(Article 31)

– Each State party undertakes to submit to the Secretary-General of the United Nations, for consideration by the committee, a report on the legislative, judicial, administrative or other measures which they have adopted and which give effect to the provisions of the convention.

• Inquiry procedure

(Article 33)

– If the committee receives reliable information indicating grave or systematic violations of the provisions set forth in the convention, the committee shall invite the State where the offences have been reported to have occurred and/or the State of registration of the PMSC reportedly involved in such offences to cooperate in the examination of the information and to this end to submit observations with regard to the information concerned.

– Taking into account any observations which may have been submitted by the State(s) concerned as well as any other relevant information available to it, the committee may, if it decides that this is warranted, designate one or more of its members to make a confidential inquiry and to report to the committee urgently.

• Complaints against parties

(Article 34)

– A State Party to the convention may at any time declare under this article that it recognizes the competence of the committee to receive and consider communications to the effect that a State party claims that another State party is not fulfilling its obligations the convention.

• Conciliation Commission

(Article 35)

– If a matter referred to the committee is not resolved to the satisfaction of the States parties concerned, the committee may, with the prior consent of the States parties concerned, appoint an ad hoc conciliation commission. The members of the commission shall be appointed with the unanimous consent of the parties to the dispute, and its good offices shall be made available to the States concerned with a view to an amicable solution of the matter on the basis of respect for the convention.

• Individual and group petitions

(Article 37)

– A State party may at the time of ratification of the convention or at any time afterwards declare that it recognizes the competence of the committee to receive and consider communications from or on behalf of individuals subject to its jurisdiction claiming to be victims of a violation by this State party of provisions of the convention. The committee shall not admit any communication concerning a State party which has not made such a declaration.

Final provisions

• Standard provisions regarding signature, entry into force, amendment, denunciation, reservations, conference of States parties, depository and languages (articles 40 to 49).

• Intergovernmental organizations

(Article 42)

– Intergovernmental organizations shall declare, in their instruments of formal confirmation or accession, the extent of their competence with respect to matters governed by the convention.

– References to “States parties” in the convention shall apply to such organizations within the limits of their competence.

– Intergovernmental organizations, in matters within their competence, may exercise their right to vote in the Meeting of States Parties.

[1] http://projects.washingtonpost.com/top-secret-america/.

[2] According to the study, private contractors for the Central Intelligence Agency (CIA) have engaged in such activities as intelligence gathering and analysis of terrorist networks and local factions in war zones, espionage, protection of CIA officials, kidnapping of suspected extremists, interrogation of detainees held at secret prisons, training of United States intelligence officers and killing of enemy fighters.

[3] The Washington Post, Top Secret America, National Security Inc., 20 July 2010.

[4] “CIA hires Xe, formerly Blackwater, to guard facilities in Afghanistan, elsewhere”,
The Washington Post, 24 June 2010.

[5] See http://www.g4s.com/en/.

[6] Rita Abrahamsen and Michael C. Williams, “Privatizing Africa’s everyday security”, Open Democracy, 1 July 2010.

[7] See http://priv-war.eu/wordpress/wp-content/uploads/2009/12/nr-19-09-col.pdf.

[8] “Why Ugandans want to work in Iraq”, BBC News, 6 November 2009.

[9] Francesco Francioni, “Private military contractors and international law: an introduction”, European Journal of International Law, vol. 19, No. 5 (2008).

[10] The Government of the United States has appealed a decision of 31 December 2009 of Judge Ricardo M. Urbina of the United States Federal District Court for the District of Columbia to dismiss the indictment against five Blackwater guards, stating that evidence against them was inadmissible under the United States Constitution. The case is pending before the Court of Appeals.

[11] Case 8:08-cv-01696-PJM, Document 103, filed 29/7/10.

[12] European Court of Human Rights, case of Klein v. Russia, application No. 24268/08,
1 April 2010.

[13] E. Prince, founder of Xe/Blackwater, indicated that one of the main objectives of the security industry would be to obtain a substantial piece of the current United Nations peacekeeping budget estimated at $6 billion to $10 billion per year. See Robert Y. Pelton, Licensed to Kill: Hired Guns in the War on Terror (New York, Crown Publishing Group, 2006).

[14] The Inter-Agency Security Management Network brings together representatives of all partners in the United Nations Network, including United Nations agencies, funds and programmes to coordinate security practices and policies across the United Nations system. The Inter-Agency Security Management Network is chaired by the Under-Secretary-General for Safety and Security and meets usually twice a year to review all existing and proposed policies, procedures and practices of the United Nations security management system and to report and make recommendations on these to the High-Level Committee on Management.

[15] The consultation was attended by representatives of Afghanistan, Bangladesh, Cambodia, China, Fiji, the Islamic Republic of Iran, Jordan, Myanmar, Pakistan, Qatar, Samoa, Thailand, Viet Nam and Yemen, as well as by the observer of Palestine.

[16] The consultation was attended by representatives of Algeria, Angola, Burkina Faso, Cameroon, the Central African Republic, the Democratic Republic of the Congo, Djibouti, Egypt, Equatorial Guinea, Ethiopia, Madagascar, Malawi, Mauritius, Morocco, Mozambique, the Niger, Sierra Leone, the Sudan, Uganda, Zambia and Zimbabwe, and representatives from the Commission of the African Union.

[17] The consultation was attended by representatives of Australia, Austria, Canada, Finland, France, Germany, Greece, Italy, the Netherlands, Norway, Spain, Sweden, Switzerland, Turkey, the United Kingdom of Great Britain and Northern Ireland and the United States of America, and representatives from the European Union.

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