Last week’s Blackwater convictions highlight an urgent need for an international treaty ensuring that private security contractors are held accountable if they commit human rights violations, according to an expert United Nations panel mandated to identify and develop global standards regulating mercenaries.

While the panel welcomed the conviction of four Blackwater contractors for the 2007 shooting deaths of 14 unarmed Iraqi civilians, it argued that “such examples of accountability are the exception rather than the rule” and called for an international treaty to “address the significant role that private military companies play in transnational conflicts,” in an Oct. 27  statement.

The panel, officially titled “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,” was established by the UN Human Rights Council in 2005. It has focused much of its attention on the need for an international treaty to effectively regulate the activities of what it calls Private Military and Security Companies (PMSCs), and in 2009 prepared a draft convention aimed at doing so.

The draft attempts to address two significant gaps in international law: a lack of rules prohibiting the outsourcing of “inherently governmental functions” to private security firms and ambiguity about the international law obligations owed by PMSCs.

However, the lack of an internationally accepted definition of “inherently governmental functions,” coupled with concerns associated with ascertaining such functions on an ex ante basis, are likely to hinder efforts to adopt or implement a legally binding convention.

In remarks before the Montreux+5 Conference last year, Working Group member Gabor Rona stated that the 2009 draft convention, “seeks to achieve something quite different” than the complementary, yet, non-binding, initiatives that currently serve as the international oversight mechanisms for PMSCs: the 2009 Montreux Document on Pertinent International Legal Obligations and Good Practices for States Related to Operations of Private Military and Security Companies During Armed Conflict and the subsequent International Code of Conduct for Private Security Military Contractors. The Working Group’s convention would create binding international rules on PMSCs. The draft convention also tries to address accountability issues which are not adequately covered by those initiatives such as the inclusion of a robust grievance mechanism and procedure for providing effective remedies to victims.

In the more than five years since the 2008 Montreux Document was adopted, it has secured support from 50 States (including the United States, China, France, Germany, and United Kingdom) and 3 international organizations. While the document expressly focuses on situations of armed conflict, the ICRC argues that it can also “guide and inspire States in the development of regulations and policies aimed at preventing violations of international law by PMSCs in post-conflict and in other, comparable situations.”

Despite this, the Geneva-based Centre for the Democratic Control of Armed Forces (DCAF) found numerous challenges to implementing the Montreux Document. These findings were detailed in a report which helped frame discussions at last year’s Montreux+5 conference aimed at assessing the status and implementation of international standards regulating PMSCs. These challenges include:

  • imprecise constraints on which functions PMSCs are permitted to perform;
  • inadequate applicability of domestic legislation to PMSCs operating abroad;
  • insufficient resources dedicated to vetting and selection processes;
  • the lack of minimum training standards for PMSCs;
  • weak monitoring of compliance with terms of authorisations, contracts and licenses; and
  • significant gaps in legal accountability and liability.

Attendees of that conference agreed to establish a Montreux Document Forum aimed at opening “a regular dialogue in particular on the challenges related to national implementation.” The first meeting of the forum is likely to take place in December of this year.

In August, the Working Group presented the UN and the Human Rights Council with a report with the results of a yearlong study aimed at “examining how the United Nations contracts private military and security companies and for what services.” The report identified numerous risks and challenges that outsourcing security to PMSCs pose to the UN and to local populations and suggests  “an efficient selection and vetting process when employing private military security companies,” and how to secure accountability for human rights violations committed by PMSCs.

The success of an international convention regulating PMSCs will be entirely dependent on how effectively it complements national and industry self-regulation. Therefore, one of the most important questions for  such a convention is what form it will take. Two alternatives have been proposed. The treaty could “cover the field” by imposing normative standards that are enforced through national and industry level regulation. Alternatively, it could provide an “umbrella framework” that facilitates the harmonization of standards by allowing “autonomous state, industry and hybrid forms of regulation to speak to each other.” It will be important to see which of these approaches gains traction.