Chapter 6: State responsibility for lack of due diligence
Contracting states, home states and territorial states face vastly differing due diligence obligations. Contracting states have a heightened duty to prevent as they required the contractors to act in the context of the armed conflict. They can address this duty to prevent through procurement standards, industry standard compliance requirements as well as contract provisions. Moreover, contracting states have a duty to legislate and create administrative structures to investigate alleged violations of international legal obligations. Home states must regulate PMSCs either through licensing regimes, export control regimes or reporting obligations. This has to be complemented with stringent monitoring and oversight capabilities. The example of the Swiss PSSA regulation highlights how home states can uphold their due diligence obligations. For territorial states, upholding the duty to protect is challenging given frequent instability and lack of institutional capabilities.
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