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Abstract

Member States of the United Nations (U.N.) are responsible for taking appropriate measures to prevent, investigate, punish, and provide effective remedies for relevant misconduct of private military and security companies (PMSCs) and their personnel; their responsibilities fully remain, even if States have chosen to contract out certain security functions. The widespread outsourcing of military and security functions to private companies in situations of low-intensity conflicts, international relief, and contingency operations has been a major phenomenon in the past twenty years. The grave human rights violations in which they have been involved in Iraq and Afghanistan have been the focus of international attention and have generated debate about the roles of PMSCs, the norms under which they should operate, and how to monitor their activities. The U.N. Working Group on the Use of Mercenaries (Working Group) has found that there is a regulatory legal vacuum covering the activities ofPMSCs and a lack of common standards for the registration and licensing of these companies, for the vetting and training of their staff, and for the safekeeping of weapons. Although there are norms of international humanitarian law (IHL) and international human rights law (IHRL) that could apply in some situations, in practice, they have not been implemented. PMSCs have succeeded in creating a situation of diffused responsibility and lack ofaccountability through a labyrinth of contractual and insurance layers and shells. The Working Group has arrived at the logical conclusion that a new binding international legal instrument is necessary to regulate and monitor the activities of PMSCs, and in 2010 it recommended to the U.N. the creation of an open-ended working group entrusted with the elaboration of a regulatory framework monitoring the activities of PMSCs. The international instrument would stipulate, among other things, the development of a national regime of licensing, regulation, and oversight of the activities of PMSCs and their subcontractors; increased responsibility of home States (where PMSCs are registered) for the export of military and security services of PMSCs registered and licensed in their country; and that States on whose territory PMSCs operate ensure effective control over the activities of these companies.

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