PART III. Legislative regulation, oversight and monitoring

Article 14

Special legislative regulation and obligations

States Parties shall take such measures within their domestic legislative systems as are necessary to legally acknowledge and affirm through appropriate enactment that the provision of military services, security services, and where relevant export/import of military and security services, are special activities which may not fall exclusively within the scope of domestic law and therefore may demand specific legal regulation.

Article 15

Registration and accountability

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

(i) Specific and obligatory procedures on governmental registration of private military and security companies;

(ii) Specific legal requirements for persons employed by private military and security companies concerning inter alia their training and experience;

(iii) Special procedures for annual reporting to the Committee on issues of accountability of domestic private military and security companies,

(iv) Special procedures for annual reporting to the Committee on accountability of foreign private military and security companies providing their services in the territory of the State Party,

(v) An oversight mechanism to monitor registration of private military and security companies offshore.

2. Each State Party shall establish and maintain a general State registry of private military and security companies operating in their jurisdiction.

3. Each State Party shall identify governmental bodies responsible for the registry of private military and security companies and exercise oversight of their activities.

Article 16

Licensing

1. Each State Party shall take such legislative, judicial, administrative and other measures as may be necessary to ensure that private military and security companies and their personnel carry out their activities exclusively under the respective licenses and authorizations.

2. All licenses and authorizations issued to private military and security companies and their personnel shall be registered in the general Registry of the State and granted following a transparent and open procedure.

Article 17

Licensing import and export of military and security services

1. Each State Party shall take such legislative, judicial, administrative and other measures as may be required to ensure that private military and security companies and their personnel import and export their services only under the respective licenses and authorizations. The license and authorization for operations related to the export of military and security services shall be issued by the respective body of the State Party in which territory the respective entity has its permanent residence under the relevant domestic law.

2. Each State Party which imports 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 of these services.

3. Private military and security companies and their personnel possessing licenses and authorizations on exporting military and/or security services issued by the competent bodies of the State Party can enter into agreements for providing such services in the territory of the other State Party with the State or another entity only after the license and authorization to import such services is issued to them by the competent bodies of the host State.

4. Each State Party shall take such legislative, judicial, administrative and other measures as may be necessary in order to:

(a) ensure that any State which is not party to the present Convention is informed about the issuance of licenses to private military and security companies and their personnel to export military and/or security services to this State,

(b) ensure that private military and security companies and their personnel, holding valid licenses and authorizations, issued by the competent bodies of the State Party to export military and/or security services to carry out single acts or, alternatively, regular activity in the territory of any State not party to the Convention, provide comprehensive information to the competent bodies of all concerned States about the nature and extent of such acts and activities.

Article 18

State obligations vis-à-vis the personnel of private military and security companies

1. Employees of private military and security companies employed under contract with these companies and their activities are subject to regulation under the legislation of the States Parties in whose territory the companies are registered under the relevant domestic law.

2. The provision of services in the export and/or import of military and security services, and the activities of personnel of private military and security companies are regulated in accordance with the legislation of the State Party which issued the license and authorization for the provision of such services.

3. Persons employed by private military and security companies must be professionally trained, examined and vetted according to the applicable international standards for military and security services and for the use of specific equipment and firearms. Such training and vetting shall be conducted in accordance with the procedure defined by the legislation of the State Party in which territory the private military and/or security company is registered under the domestic law and under international standards on the use of force and firearms in the course of military or security activities.

4. The personnel of private military and security companies providing military and security services in the territory of a foreign country undertake to respect the sovereignty and laws of the receiving country, refrain from any actions inconsistent with the principle not to interfere with the domestic affairs of the receiving country, not to intervene in the political process or in the conflicts in its territory, as well as to take all necessary measures to avoid harm to the citizens and damage to the environmental and industrial infrastructure, and objects of historical and cultural importance.

5. The personnel of private military and security companies providing military and security services in the territory of a foreign state undertake to observe the norms of international humanitarian law, as provided by the Geneva Conventions of 12 August 1949 and in the Additional Protocols from 8 June 1977 and strictly adhere to the norms and standards set out in the core international human rights instruments.

Article 19

Regulation of use of force and firearms[4]

1. Each State Party shall take such legislative, judicial, administrative and other measures as may be necessary to establish rules on the use of force and firearms by the personnel of private military and security companies taking into account that employees may carry firearms in providing military and security services.

2. In providing military and security services, employees shall, as far as possible, apply non-violent means before resorting to the use of force and firearms. They may use force or firearms only if other means remain ineffective or without any promise of achieving the intended result.

3. Whenever the use of force and firearms is unavoidable, private military and security companies personnel shall:

(a) Exercise restraint in such use and act in proportion to the seriousness of the offense;

(b) Minimize damage and injury, and respect and preserve human life;

(c) Ensure the assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment;

(d) Ensure the relatives or close friends of the injured or affected person are notified at the earliest possible moment.

4. In providing military and security services, employees may use force or firearms only in the following circumstances:

(a) To defend him/herself or other employees of the company against what he/she believes to be an imminent 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 threat of death or serious body injury,

(c) To resist what he/she reasonably believes to be an attempt to abduct him/herself, 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.

5) In the circumstances provided under article 19 (4), the personnel of private military and security companies shall identify themselves as such and give a clear warning of their intent to use firearms, with sufficient time for the warning to be observed.

6) In the case of private military and security companies and their personnel providing military and security services under the agreement as a part of armed forces or military units of the State Party, the use of force is regulated by the norms of its military and other respective legislation and relevant international humanitarian law and international human rights law.

Article 20

Additional measures

1. In addition to the measures set out in Articles 14-19 of the present Convention each State Party, consistent with its legal system, shall take legislative, judicial, administrative and other effective measures to ensure the training of personnel and to promote human rights norms and principles relating to activities of private military and security companies and their personnel.

2. Each State Party shall ensure that arbitrary or abusive use of force and firearms by personnel of private military and security companies is punished as criminal offense under the law of the contracting State, territorial State or home State.

3. The States Parties shall, through international and regional organizations, exchange information on the activities of private military and security companies in their respective territory or area of deployment, with the view to coordinating approaches, elaborating general definitions, standards and methodology and generally broadening their knowledge and experience on the issue.

4. Each State Party shall undertake to implement policy for regulating the activities of these companies as well as to carry out regular assessment of their efficiency and effectiveness and their continuing relevance.

PART IV. State Responsibility to impose penal sanctions on offenders and provide remedies to victims

Article 21

Criminalization of offenses in the sphere of military and security services

1. Pursuant to Article 17 of this Convention, each State party shall take such legislative, judicial, administrative and other measures as are necessary to penalise the export and import of military and security services when this occurs without the required licenses and authorization.

2. States parties shall take such measures as are necessary to investigate, prosecute and punish violations of the present Convention, and to ensure effective remedies to victims.

Article 22

Establishment of jurisdiction

1. Each State party shall take such measures as may be necessary to establish its jurisdiction through its domestic law over the offenses set out in this Article when:

(a) The offense is committed in the territory of that State; or

(b) The offense is committed by a national of that State.

2. A State party may also establish its jurisdiction over any of the offenses set out in this Article when:

(a) The offense is committed against a national of that State; or

(b) The offense is committed by a stateless person who has his or her habitual residence in the territory of that State; or

(c) The offense is subject to universal jurisdiction.

3. Upon ratifying, accepting, approving or acceding to this Convention, each State party shall notify the Secretary-General of the United Nations of the measures it has taken with respect to the establishment of jurisdiction under this article. Should any subsequent change take place, the State party concerned shall immediately notify the Secretary-General of the change.

4. Each State party shall likewise take such measures as may be necessary to establish its jurisdiction over the offenses set out in this Article in cases where the alleged offender is present in its territory and it does not extradite such person to any of the States parties which have established their jurisdiction in accordance with paragraphs 1 or 2 of this Article.

5. Each State party which establishes jurisdiction under subparagraphs 1(b) and paragraphs 2 or 4 of this Article shall make the offenses set out in this Article punishable by the same penalties which would apply when they are committed in its own territory.

6. This Convention does not exclude the exercise of any criminal jurisdiction established by a State party in accordance with its national law.

7. The following offenses are to be penalised under this Convention:

(a) War crimes as defined in article 8 of the Statute of the International Criminal Court,

(b) Crimes against humanity, as defined in article 7 of the Statute of the International Criminal Court,

(c) Genocide, as defined in article 6 of the Statute of the International Criminal Court,

(d) Violations of the provisions of the International Covenant on Civil and Political Rights, in particular violations of articles 6 (right to life) 7 (prohibition of torture), 9 (security of person, prohibition of disappearances, arbitrary detention, etc.), 12 (prohibition of forced expulsion and displacement),

(e) Violations of the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment,

(f) Violations of the International Convention for the Protection of All Persons from Enforced Disappearance,

(g) Grave breaches of the Geneva Conventions of 1949 and Additional Protocols of 1977,

(h) Reckless endangerment of civilian life, right to privacy and property by private military companies and private security companies,

(i) Damage to or destruction or cultural heritage,

(j) Serious harm to the environment,

(k) Other serious offenses under international human rights law

(8) In relation to imposing penalties for offenses elaborated in this article, due consideration should be paid to offenses committed against vulnerable groups.

Article 23

Jurisdiction over other crimes

1. Each State party shall take such measures as may be necessary to establish its jurisdiction over other crimes committed by the personnel of private military and security companies in providing their services in the territory of another State party or State not party to this Convention.

2. Any specific jurisdiction or legal matters related to the investigations of crimes committed by the personnel of private military and security companies in providing their services in the territory of another State party or State not party to the present Convention, or agreements of extradition, may be regulated by an additional international agreement concluded between these States.

Article 24

Extradition

1. To the extent that the crimes set out in article 22 are not mentioned specifically in any extradition treaty existing between States parties, they shall be deemed to be included as extraditable offenses in the treaty. States parties undertake to include such offenses as extraditable offenses in every extradition treaty to be subsequently concluded by them.

2. When a State party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State party with which it does not have an extradition treaty, the State party which requests extradition may, at its option, consider this Convention as a legal basis for extradition in respect of the offenses. Extradition procedures should take into account but shall not be limited by any conditions or restrictions stipulated in the law of any State party.

3. States parties which do not make extradition conditional on the existence of a treaty shall recognize the offenses listed in Article 22 as extraditable offenses between themselves, taking into account but not limited by the law of any of the State parties.

4. The provisions of all extradition treaties between States parties with regard to the offenses set out in article 22 shall be deemed to be modified as between States parties to the extent that they are incompatible or inconsistent with this Convention.

5. In the event of a conflict between the obligations of States parties under this Convention and other bi-lateral or multilateral conventions on extradition, this Convention shall prevail.

Article 25

Mutual legal assistance

1. States Parties shall afford one another the widest measure of mutual legal assistance in investigations, prosecutions and judicial proceedings in relation to the offenses covered by this Convention and shall reciprocally extend to one another similar assistance where the requesting State Party has reasonable grounds to suspect that the victims, witnesses, proceeds, instrumentalities or evidence of such offenses are located in the requested State Party.

2. States parties shall carry out their obligations under paragraph 1 of this Article in conformity with any treaties or other arrangements on mutual legal assistance that may exist between them. In the absence of such treaties or arrangements, States parties shall afford one another assistance in accordance with their national law and international principles on friendly relations between States.

Article 26

Transfer of criminal proceedings

1. States parties may transfer to one another proceedings for the prosecution of offenses under this Convention in cases where such transfer is considered to be in the interests of the proper administration of justice.

2. States parties may refer cases to the International Criminal Court.

Article 27

Notification of outcome of proceedings

The State Party where the alleged offender has been prosecuted under articles 22 and 24 shall, in accordance with its national law or applicable procedures, communicate the final outcome of the proceedings to the Secretary-General of the United Nations, who shall transmit the information to other States Parties and to the host State.

Article 28

Liability of legal persons and entities

1. 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 participation in serious crimes involving an organized criminal group or company or other entity and for the offenses established in accordance with article 22 of this Convention.

2. Subject to the legal principles of the State Party, the liability of legal persons, including groups, companies and entities may be criminal, civil or administrative, or a combination of these.

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

4. Each State Party shall, in particular, ensure that legal persons held liable in accordance with this article are subject to effective, proportionate and dissuasive criminal or non-criminal sanctions, including fines, economic sanctions, prohibitions of further employment, obligation to provide restitution and/or compensation to the victims.

5. States Parties shall, in the interests of justice, lift any immunity applicable under other Conventions or Agreements.

Article 29

Funds for the rehabilitation of victims

1. States parties shall establish funds to rehabilitate the victims of offenses under this Convention;

2. The establishment of such funds shall be without prejudice to the obligation of private military and security companies to directly compensate victims of violations.

PART V. Obligations of Inter-governmental organizations and non-State actors

Article 30

Obligations of Inter-Governmental Organizations

1. Inter-governmental organizations that have ratified this Convention shall adopt internal rules and regulations to monitor compliance with the Convention and take such measures as are necessary to investigate reports of violations of this Convention by any member State or organization with a view of remedying such violations and/or referring appropriate cases to a competent tribunal.

2. If the United Nations employs private military and security companies in the implementation of Security Council Resolutions, peacekeeping or other missions under the UN Charter, it shall exercise due diligence in ensuring the strict adherence to human rights norms by the personnel of said companies and shall not invoke article 103 of the UN Charter in any manner that would hamper the implementation of the present Convention. The United Nations shall promptly investigate any reports of violations of human rights norms and impose appropriate disciplinary or penal sanctions.

Article 31

Obligations of Private Military and Security Companies

1. Within their respective spheres of activity and influence, Private Military and Security Company have the obligation to respect, ensure respect of and protect human rights recognized in international as well as national law.

2. Private military and security companies and their employees shall abide by the international standards for corporate responsibility to respect all internationally recognized human rights;[5]

3. Private military and security companies and their employees shall have the responsibility to use due diligence in ensuring that their activities do not contribute directly or indirectly to human rights abuses[6] and to causing or exacerbating inter or intra-state warfare or conflict;

4. Private military and security companies and their employees shall abide by the national law of the countries of origin, transit and operation.

5. Private military and security companies and their employees shall not carry out activities defined under article 2 (k) as fundamental functions of the State.

Date: 2015-02-03; view: 674