Private military/security companies: Rules should be implemented

Monsieur le Conseiller fédéral Didier Burkhalter,
Excellences,
Mesdames et Messieurs les représentants des gouvernements,
Mesdames et Messieurs,

C'est un grand plaisir pour moi de me retrouver ici à Montreux avec vous dans le cadre de cette conférence qui marque les cinq ans de l'adoption du Document de Montreux sur les obligations juridiques pertinentes et les bonnes pratiques pour les États en ce qui concerne les opérations des entreprises militaires et de sécurité privées pendant les conflits armés.

...the ambition of the ICRC and the Swiss Government behind the Montreux Document - without rejecting or welcoming the use of PMSCs - was to simply recall that rules exist and should be implemented.

With the rise of the PMSC industry about a decade ago, the ICRC observed the emergence of a new type of actor in armed conflict. Individuals working for private companies outside military chains of command were increasingly armed and engaged in activities typically associated with State armed forces. And they were increasingly involved in incidents of concern to the ICRC. In a number of these incidents, PMSCs were implicated in uses of force causing death or injury to civilians. In others, PMSCs operating detention facilities engaged in practices amounting to ill-treatment of detainees. While not necessarily representative of these companies’ general conduct, these particularly serious incidents raised questions about the type of work that they are hired to do and the apparent absence of accountability for their actions.

In the same time, there was a widespread misconception in the media and among the general public that these companies acted in a legal void. In large part, this misreading of the law was due to the absence of an international document that specifically addressed the activities of PMSCs. The result was an urgent need to clarify the rules of international law applicable to States using these companies in armed conflict.

The Montreux Document, adopted in 2008 by 17 States - after two years of intense consultations with governments, as well as experts from civil society and the PMSCs industry – is the outcome of the joint efforts of the ICRC and Switzerland to address this issue.

The Montreux Document has two main objectives. First, it reaffirms and, insofar as necessary, clarifies the existing obligations of States under international law - in particular under international humanitarian and human rights law. And second, it identifies good practices to assist States in promoting respect for international law by PMSCs.

The Montreux Document is therefore primarily a restatement of existing international law; by signing the document, States and International Organizations do not undertake any new legal obligations, but rather acknowledge the importance of these issues and signal their willingness to address them. The Montreux Document does not, however, preclude the eventual future development of international law, should States decide on such a course of action.

The two objectives of the Montreux Document demonstrate its purely humanitarian purpose. It was drafted only to promote respect for International Humanitarian and Human Rights Law when PMSCs are present in armed conflicts. The Document does not address policy issues such as whether the use of PMSCs in armed conflict is appropriate or ethical. This does not mean that questions around the legitimacy of the use of such companies are irrelevant or that they should not be addressed in another forum; but the ambition of the ICRC and the Swiss Government behind this Document - without rejecting or welcoming the use of PMSCs - was to simply recall that rules exist and should be implemented.

Today, five years after its adoption, it can safely be said that the two humanitarian objectives behind the Montreux Document have been significantly advanced. The Document has been signed by 49 States and three international organizations. States’ obligations with respect to PMSC activities in armed conflict are better understood and the argument that these companies operate in a legal void is no longer heard. A substantial effort has been made to disseminate the importance of States ensuring that activities of PMSCs do not lead to violations of International Humanitarian and Human Rights Law; and many governments and international organizations have taken steps to ensure adequate regulation of the industry.

Excellencies, Ladies and Gentlemen,

That undeniable progress has been made during the last five years does not necessarily mean that no issues remain. PMSCs continue to operate in contemporary armed conflict on a scale that is unprecedented. Their activities diversify and increase the ranks of arms carriers posing a continued threat to civilians. The tasks they perform are constantly evolving, adapting to new requests by their contractors, and some continue to generate humanitarian concerns.  

In armed conflicts, PMSCs for example continue to be employed by States to guard military facilities, operate checkpoints or escort military vehicles, sometimes in the midst of ongoing hostilities, without incorporation in the armed forces. Even if frequently labelled "security tasks", these activities are aimed at the protection of military personnel and facilities against opposing parties to a conflict and could therefore amount to direct participation in hostilities, making PMSC employees legitimate targets of attack. When engaging in such activities, PMSCs should therefore provide their staff with clear instructions and appropriate training on the applicable standards and rules regulating the use of force. Unfortunately, such training and instructions are not systematically provided, and there are continued reports depicting excessive uses of force by private contractors in contexts such as Iraq, Afghanistan and Somalia.

Another sector of the PMSC industry that continues to raise humanitarian concerns is the development of their training services. States bear the responsibility for ensuring that members of their security and military forces receive adequate training in International Humanitarian and Human Rights Law, but they increasingly rely on PMSCs to provide this training. Adequate training remains an essential tool in the prevention of violations and therefore in the protection of the civilian population. The provision of training services by PMSCs thus requires appropriate regulation and a strong monitoring.

Though the Montreux Document explicitly focuses on armed conflict situations, it can serve to 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. In these domains humanitarian challenges remain as well. Concerns for example have arisen when private companies have used PMSCs to ensure the safety of their personnel and facilities in volatile security environments. Questions of human-rights abuses have been raised particularly in the extractive industry including examples of violent repressions of local communities. Maritime security has also been a growing concern, owing in large part to the rise in piracy in particular off the Horn of Africa and in Southeast Asia. Private contractors have increasingly been called upon to provide armed protection on board merchant ships. Of course, the safety and well-being of persons held by pirates is of great concern and acts of piracy must be countered with adequate protective measures; but the use of armed force at sea by private security guards - like any other use of force - must be strictly regulated to prevent abuses. The use of PMSCs beyond situations of armed conflict should therefore also be regulated and the Montreux Document may be instructive in this respect.

Excellencies, Ladies and Gentlemen,

Five years after its adoption, the Montreux Document remains a strong and useful guiding tool for States and International Organizations in the implementation of a regulatory framework for PMSCs. It has also inspired the development of other initiatives to regulate the activities of PMSCs.  

International Organizations and even the PMSCs themselves have adopted standards and policies inspired by and referring to the Montreux Document – the best examples being the United Nations Security Policy Manual and the International Code of Conduct for Private Security Service Providers. The development of these additional instruments aimed at assisting International Organizations and the industry, rather than States, to ensure that PMSC activities comply with applicable rules of international law is a welcome complementary approach.

Finally, Excellencies, Ladies and gentlemen,

The number of States and International Organizations signatory to the Montreux Document is increasing. However, I am confident that it could still be higher. The promotion of the Montreux Document will therefore remain an important activity of the ICRC in the coming years.

As indicated by the Federal Councillor Didier Burkhalter, the ICRC - together with the Swiss government and the Geneva Center for Democratic Control of Armed Forces - has already organized various regional seminars to promote and disseminate the Montreux Document. So far, seminars have been held in Chile, Mongolia, Australia and the Philippines. We expect to hold additional seminars in Africa in 2014-2015.

The main objective of these seminars is to promote the Montreux Document. But they have also provided a valuable opportunity for States, the ICRC and other stakeholders to discuss national implementation of the rules and good practices set forth in the Montreux Document and to offer a regional perspective on the issue of PMSCs. These seminars have also highlighted the added value of sharing experiences and challenges among State and the importance of cooperation in this respect. They have thus paved the way to this Montreux +5 Conference.

The number of Delegations participating in this Conference indicates that the regulation of PMSCs, as well as concerns and challenges raised by their activities especially in armed conflict situations, remains an important issue for States and International Organizations and this, in itself, is an encouraging sign.

A positive outcome of this Conference is important. Considering the nature of the services offered by PMSCs, the complexity of contexts in which they operate, and their potential to harm the civilian population if not adequately trained and regulated, the reinforcement of national laws or regulatory systems able to ensure respect for international humanitarian and human rights law remains key.

The report prepared by the Geneva Centre for the Democratic Control of Armed Forces (DCAF) entitled: “Progress and Opportunities, five years on: Challenges and Recommendations for Montreux Document endorsing States" provides interesting food for thought to inform our discussions and to help identify concrete ways to advance implementation of PMSC regulation at the national level. I am convinced that this Conference will be a valuable opportunity to discuss and to share experiences on the various concerns faced by States and International Organizations in implementing the Montreux Document and to find constructive way to overcome the existing challenges in that respect. I wish you fruitful debates in the following two days and can assure you that the ICRC will continue to take part in relevant initiatives aimed at disseminating, fostering and implementing the Montreux Document.  

I thank you for your attention.