Private military and security companies : positive human rights obligations of the host state

Abstract

This paper examines the positive human rights obligations of states on whose territory private military and security companies (PMSCs) operate. It considers the obligations to prevent human rights violations; the obligations to investigate violations, to prosecute their perpetrators and to provide reparations to the victims. The paper analyses the case-law and views of the monitoring bodies of the main universal and regional human rights instruments, applying it to the host state of PMSCs. This case-law confirms that the general duty to protect human rights is primarily conferred upon the state in whose territory violations may occur. The lack of institutional capacities often complicates or precludes compliance with these obligations. Moreover, military occupation or other forms of effective control exercised in the state’s territory by third states also affect the host state’s obligations and may give rise to extra-territorial application of human rights. The paper argues that the host state of a PMSC can nevertheless be held accountable for violation of a positive obligation, when human rights violations occur which do not fall within the scope of such effective control and where the institutional capacities are sufficiently developed to comply with at least some of these obligations. Such capacities vary among states and may evolve over time, such as in a transitional post-conflict phase. Therefore, host states of PMSCs should be aware of their obligations under human rights law and, to the extent possible, ensure compliance with these duties.