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PMSCs IGWG – U.S. Opening Statement
August 31, 2012

Statement by the Delegation of the United States of America

Open-Ended Intergovernmental Working Group on
Private Military and Security Companies, August 13-17, 2012

Opening Statement

Thank you very much.

United States policy with regard to private security companies and private military companies is informed by two critical objectives: (1) to promote accountability, transparency and respect for human rights, and (2) to ensure governments and other non-state clients are able to continue to utilize private companies in areas where they are necessary for important operations, including those related to stabilization, humanitarian assistance, diplomacy, and development.

The United States takes very seriously that first objective and recognizes legitimate concerns that have been expressed about the operations of PSCs and PMCs; and we firmly support both international and domestic efforts to ensure accountability for human rights related abuses committed by PSCs or PMCs – as well to establish and strengthen policies that can help prevent misconduct before it occurs.

At the international level, as I expect we will discuss in more detail tomorrow, we have supported both the 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 International Code of Conduct for Private Security Service Providers.  We believe that these efforts are complementary and can be used to support efforts by states to craft appropriate legal and regulatory approaches to these industries.  Recognizing that the relationship with and impact of these industries varies from state-to-state, it is our view that national-level regulation, based on informed consideration and open deliberation, is the most appropriate and effective way to ensure respect by these industries for human rights.

At the national level, we have taken steps both (1) to mitigate the potentially negative human rights related impact of PSC and PMC activities and (2) to ensure accountability for any misconduct that occurs.  With regard to the former, U.S. Government contracts have incorporated robust standards of conduct, training requirements, and specifications for the selection and vetting of personnel.  Furthermore, many activities of PSCs and PMCs are subject to licensing requirements under U.S. law.  The export of defense articles or defense services, for instance, is regulated under the Arms Export Control Act.

We have also established procedures for reporting and investigating instances of alleged misconduct by private security contractors operating in connection with contingency operations.   And we have supported passage of the Civilian Extraterritorial Jurisdiction Act (CEJA), which would expand and clarify extraterritorial jurisdiction over U.S. Government contractors who are not already covered by the Military Extraterritorial Jurisdiction Act (MEJA), the Special Maritime and Territorial Jurisdiction Act (SMTJ), or the Uniform Code of Military Justice (UCMJ).

With this update in mind, and recognizing we’ll have an opportunity to speak more about the U.S. experience in subsequent sessions, we’d like to briefly set out three principles that we think we should all bear in mind this week.

  • We should seek consensus on this issue.  As you know, the United States voted against the resolution establishing this Working Group and continues to believe that pursuit of a legally-binding instrument is not an appropriate or useful goal for this body.   We nevertheless engaged at the first session of this Working Group and hope at this session that we can reach consensus on possible recommendations to present to the Human Rights Council.  An approach that divides us is unlikely to bear fruit.  Consider, for instance, the limitations of the 1989 International Convention against the Recruitment, Use, Financing and Training of Mercenaries.  But an approach that brings together host states, territorial states, and contracting states to make progress in step-by-step fashion on promoting and protecting human rights in the context of activities of PSCs and PMCs would be well worth pursuing.  The United States very much supports measures that can reduce the risk of, and ensure accountability for, any misconduct by PSCs and PMCs; and we hope we can reach common ground on how to take the next step in achieving those goals.
  • A consensus approach should recognize and distinguish between the national and international dimensions to this issue.  As we have said before, much of what is needed in this area is better implementation of existing international law, as well as improvements in law, regulation and policy at the national level.  Indeed, it bears reiterating that a domestic focus is appropriate since, when operating outside of armed conflict, PSCs and PMCs are primarily regulated by domestic law, which may or may not adequately reflect human rights concerns.  That said, we remain open to considering the international element as well – and in particular how we as states can draw on each other’s experiences to help each other address human rights related impacts of PSC and PMC activities.
  • To make progress at the international level, we should have a focused discussion of what the problems are and what strategies are working to address them.  In this regard, we welcome the study on national legislation that the Working Group on Mercenaries is undertaking.  We also look forward to hearing the presentations on Thursday from states with national legislation on how they have addressed issues arising from PSC and PMC activity.  It would be valuable to use these discussions to identify possible topics for further discussion among states – such as the best approaches different states have taken to licensing and export, and any challenges they have faced, or approaches different states have taken to accountability, including whether they have pursued civil, criminal, or administrative remedies.

We look forward to this second session of the IGWG and to the robust discussion I am sure we will have.