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Opening Remarks by Marcia V.J. Kran, Director Research and Right to Development Division to the second session of the open-ended intergovernmental working group of international regulatory framework on the regulation, monitoring and oversight of the activities of private military and security companies

13 August 2012

Excellencies,
Distinguished Delegates,
Ladies and Gentlemen,

It is a pleasure to welcome you today as you meet for the second session of the open-ended intergovernmental working group.

As you will recall, the mandate of this working group, established pursuant to resolution 15/26, adopted by the Human Rights Council in October 2010, is “to consider the possibility of elaborating an international regulatory framework, including, inter alia, the option of elaborating a legally binding instrument on the regulation, monitoring and oversight of the activities of private military and security companies, including their accountability”. The resolution specifies that consideration of this option should take into account the principles, main elements and draft text as proposed by the Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination.

Your discussions will build on the first session of this intergovernmental working group held in May 2011, which addressed a range of challenges to the effective regulation of the activities of private military and security companies (or “PMSCs”, for short). Those discussions focused on existing law and practice, as well as on issues of accountability for human rights violations linked to the activities of private military and security companies. They also touched upon elements of an international regulatory framework for the activities of PMSCs.

From a human rights perspective, what matters essentially is that there is no protection gap and no impunity, and that where violations occur, victims have access to an effective remedy.

As delegations observed during the first session, the issues at hand are complex, starting with the very definition of “private military and security companies”, which are engaged in a variety of activities and provide a broad range of services internationally and domestically. While there is no internationally-agreed definition of “private military and security companies”, a plain reading of the term would suggest that it covers a spectrum ranging from companies employing the guards in a local shopping mall, to corporations providing highly trained professionals —many of whom have a military background themselves -- who work closely with state military forces deployed abroad. Discussions during the first session underscored the importance, therefore, of a clear definition of the term “private military and security companies”, with some suggesting the need to distinguish between the activities of private military companies, on the one hand, from those of private security companies on the other.

As the Deputy High Commissioner noted in her statement to the first session, there is no doubt that the increase in outsourcing of security-related state functions to private companies has brought about human rights challenges, particularly given that such companies frequently operate transnationally. It has also raised questions related to the extent to which private actors can be held to account for human rights violations, and in what way. Protecting the human rights of individuals is especially difficult when private military and security companies operate in situations of conflict and post-conflict, where their employees may bear arms, operate places of detention, conduct interrogations and protect military facilities. In these contexts, ensuring accountability for the activities of PMSCs and their personnel in compliance with international human rights and humanitarian law is especially challenging.

In the coming days, you will have the opportunity to consider whether these challenges are adequately addressed by existing regulatory initiatives or whether options for further regulation at the international level should be explored. As mandated in resolution 15/26, discussions during this second session will be reflected in a report of the intergovernmental working group, with specific recommendations to the Human Rights Council.

Following consultations with all regional groups in the preparation of the session, the Chairperson has identified a number of distinguished expert speakers who bring with them a wealth of experience from academia, international organisations, civil society, and the private military and security industry itself. I am pleased to note that the Chairperson of the Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the rights of peoples to self-determination will join you this afternoon in order to provide an update on behalf of the Working Group. Presentations by other experts in the coming days will help to inform your discussions through their interventions on existing specific initiatives, including the Montreux Document and the International Code of Conduct; on the option of elaborating a legally binding instrument; on the perspective of the private military security industry, as well as – crucially - on the perspective of victims. Interventions by States with national legislation relating to the activities of private military and security companies also will provide important insights.

Let me conclude by thanking you all for your active engagement in this process. I wish you a productive session.