Searching for Accountability: The Draft UN International Convention on the Regulation, Oversight, and Monitoring of Private Military and Security Companies
Canadian Yearbook of International Law, Vol. 47, pp. 299-317, 2009
Posted: 16 Dec 2011
Date Written: 2009
On 13 July 2009, a United Nations Draft International Convention on the Regulation, Oversight and Monitoring of Private Military and Security Companies was approved for distribution and comment. The existence of the Draft Convention itself appears to effectively render moot the perennial scholarly debate about whether private military and security contractors are presumptively mercenaries and, thus, illegal as such under international law. Indeed, the emphasis in recent years has shifted in both academic and policy circles to the question of how the international community and affected states should adapt to the reality of private military and security activity so as to ensure that risks associated with their conduct are managed, that oversight and accountability for wrongdoing is strengthened, and that greater transparency is brought to the industry and its regulation.
The creation of the Draft Convention also attests to persistent concerns about the scope of activities engaged in by private military and security companies in Iraq, Afghanistan, and elsewhere, including several high-profile allegations of indiscriminate killing of civilians and the use of contractors during problematic interrogations of detainees. In short, because private military and security companies appear to be here to stay, the international community had best learn to more effectively deal with them. The ambitious goal set by the UN Working Group is reportedly to consult with UN member states as well as researchers, interested non-governmental groups, and individuals to prepare an official draft treaty that would be tabled at the UN Human Rights Council as early as September 2010.
This article aims to contribute to the constructive debate surrounding the substantive content of the Draft Convention itself and identify areas for Canadian law and policy development on this topic. The first part of this article briefly summarizes the major elements of the Draft Convention on a thematic basis. Without purporting to be an exhaustive review, the second part critically evaluates several key aspects of the Draft Convention and exposes potentially significant concerns about the consistency of the current version with the general principles of international law. Finally, the third part makes policy recommendations for the government of Canada in light of the Draft Convention, given that Canada is a home state, contracting state, and, less significantly, a territorial state. These recommendations are made irrespective of progress made towards the negotiation and adoption of the Draft Convention.
Keywords: International law, Mercenaries, UN Draft Convention on the Regulation, Oversight and Monitoring of Private Military and Security Companies
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