A humanitarian perspective on the privatization of warfare
35th round table on current issues of international humanitarian law, San Remo, 6-8 September 2012, Keynote address by Christine Beerli vice-president of the ICRC.
The ICRC has not joined the debate about the legitimacy of using private military and security companies (PMSCs). Indeed, it is not for the ICRC to take a stance on this question. The ICRC is essentially concerned with whether and how international humanitarian law (IHL) applies to PMSCs operating in an armed conflict situation and about their compliance with IHL. It is about this issue and how to address it that I would like to talk to you today.
The presence of PMSCs in armed conflict, more than anything else, symbolizes for many people a fall back into private warfare. Today's private contractors operate on a scale that is unprecedented in contemporary armed conflict, performing functions that bring them so close to the battlefield that the traditional assumptions of modern IHL seem to come under strain. One of these is that conflicts are fought between States or, at most, between States and organized armed groups, but not by business corporations.
A number of incidents involving PMSCs have recently caught the public eye. While they are not representative of the general behaviour of these companies, they were of sufficient gravity to draw attention to the lack of clarity about the rules governing their activities, to highlight deficiencies in terms of accountability and to raise questions about the work they are contracted to do.
To illustrate this, let me start with some examples:
There have been various reports about the excessive use of force by private contractors leading to civilian casualties – in particular during the conflicts in Iraq and Afghanistan. It also appears that the rules governing the use of force or the instructions given to contractors have sometimes been far from clear. Often, States and contractors have a poor understanding of the legal consequences of PMSCs' activities. In a number of conflicts, PMSCs are employed by States to guard military facilities or to escort military vehicles, sometimes in the midst of ongoing hostilities, without being incorporated into the armed forces. The fact that these types of activity are frequently referred to as "purely defensive," means that it is often overlooked that the protection of military personnel and facilities against opposing parties to a conflict amounts to direct participation in hostilities and makes the contractors legitimate targets of attack under IHL.
PMSC personnel have also been contracted by States to work in military detention facilities, including in interrogation roles. There have been reports of private contractors taking part in the ill-treatment of detainees.
States are not the only ones to use the services of PMSCs. Business enterprises active in conflict zones, especially those in the extractive sector, often resort to private contractors to ensure the safety of their personnel and facilities. Unfortunately, some of these companies have been involved in human-rights abuses, for instance in cases where they were associated with violent repression of local communities opposing their activities.
More recently, the maritime security sector has grown exponentially owing to the rise in piracy, in particular off the Horn of Africa and in Southeast Asia. In these circumstances, private contractors might be called upon to provide armed protection on board merchant ships. Of course, the fate of persons held by pirates is a matter 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 in order to prevent abuses.
Humanitarian issues to be addressed
In light of these examples, a number of humanitarian issues need to be addressed. I will mention only three, which are of particular concern to the ICRC.
The first is the need for a clear legal framework in terms of applicable international rules, but also appropriate domestic legislation and regulations covering the specific activities of PMSCs. There is no doubt that the personnel of PMSCs is bound by IHL. As we know, States have an obligation to ensure compliance with IHL including by PMSCs and their personnel. In order to do so and depending on the tasks PMSCs perform, clear rules must be established by States, including through domestic legislation, especially on the use of force. Contractors must as well receive adequate instructions and training in that respect.
Secondly, considering that many PMSCs act outside the military chain of command and that coordination of their operations with contracting States has frequently proven to be deficient, there is a need for accountability for wrongdoings. If PMSCs use excessive force, or if they are involved in abuses towards detainees, who is accountable? The person committing the act? The company? The State contracting the company? To avoid any abuses, it is important to clarify their respective responsibilities. It also important to ensure that there are no gaps in jurisdiction especially in the domestic legislations of contracting and home States to ensure that employees of PMSCs or the PMSCs can be held accountable in case of wrongdoings. This is particularly necessary as the judicial systems of States affected by conflict or post-conflict situations are often weak and lack the capacity to effectively address violations.
Thirdly, there is a need to restrict the direct participation of civilian contractors in hostilities: The presence of private contractors carrying out military tasks among the population diversifies and swells the ranks of arms carriers who pose a threat to civilians. It also contributes to blurring the essential line between civilians and combatants. The tasks that PMSC personnel perform, the equipment they use and wear, and the weapons they carry may easily lead them to be mistaken for combatants. Also, it is difficult to ensure compliance with IHL when contractors act outside the military chain of command, as they most often do. This leads the ICRC to believe that PMSC personnel should not be contracted to take a direct part in hostilities, even if IHL does not explicitly prohibit it.
Some of the situations described and the publicity surrounding a number of incidents have led to the common misconception that PMSCs operate in a legal vacuum. Thanks to the efforts of many States and organizations, and part of the PMSC industry, this wrong perception should now be vanishing. The issue today is not so much whether international law applies to PMSCs as how to ensure compliance with the applicable rules of that law by PMSCs and their staff. Indeed, major problems of implementation and accountability remain owing to the unwillingness or the inability of States and other actors to uphold or enforce existing rules.
In the face of these challenges, there are several possible responses.
First, in order to counter the perception of a lawless and unregulated phenomenon, it is important to stress that a relevant international legal framework exists. This was the aim of the Montreux Document of 2008.
In order to ensure greater compliance with IHL and human rights law by PMSCs operating in conflict zones and to reaffirm the obligation of States in this respect, the Swiss government and the ICRC launched an initiative in 2005 that led to the adoption of the Montreux Document three years later. This document focuses on the obligations of States, emphasizing that States bear the primary responsibility for ensuring compliance with IHL and human rights law. It specifically addresses the obligations of States that contract the services of PMSCs, States on whose territory PMSCs operate, and States under whose jurisdiction PMSCs are incorporated or registered. The document also sets forth good practices in order to provide guidance for States endeavouring to incorporate their obligations into domestic legislation and regulations. Today, more than 40 States have endorsed this document and last month, the European Union became the first international organization to officially support it.
The ICRC calls on all States to endorse the Montreux Document and to implement the obligations and good practices it sets forth in their domestic legislation. The Swiss government and the ICRC are ready to assist them in this effort.
A second avenue is self-regulation by the PMSC industry.
In November 2010, different representatives of the PMSC industry adopted an International Code of Conduct expressing their commitment to strict standards of conduct with respect both to the use of force and to the treatment of persons detained or otherwise exposed to the activities of PMSCs. Today more than 460 companies are signatory to the Code of Conduct, for which an oversight mechanism will soon be established. While not an alternative to international law or domestic legislation, the Code of Conduct, with its oversight mechanism, has the potential to contribute to setting strict standards of conduct for PMSCs and their personnel, and thus to improve compliance with IHL and human rights law.
A third possibility would be to regulate the activities and behaviour of PMSCs through an international treaty. This possibility is being discussed within the framework of the United Nations Human Rights Council. Such a treaty would lay down new rules of international law with regard to PMSCs, and it could also identify activities that would be confined to States and that could under no circumstances be outsourced to private companies.
Initiatives to address the privatization of warfare cannot be limited to PMSCs and the legal framework governing them. Other companies, in particular those in the extractive industries, are often linked to the activities of PMSCs and their activities may have an impact on armed conflicts as well. The ICRC has been engaged in assisting such companies in their endeavours to apply heightened levels of due diligence. Over the years, it has played a constructive role in numerous multi-stakeholder processes or initiatives seeking to create norms or to offer guidance so that companies do no harm; it has in particular taken part in various UN Global Compact work streams and OECD-supported processes. It has offered occasional input into the work of former UN Special Representative on Business and Human Rights, John Ruggie. It has been an observer and active contributor to the Voluntary Principles on Security and Human Rights, an initiative seeking to provide guidance for companies in the extractive sector wishing to maintain the security of their operations within a framework that ensures respect for IHL and human rights. As part of this initiative, the ICRC has been one of four organizations to develop a set of practical tools that help companies transform the resolutions taken under the Voluntary Principles initiative into concrete measures in the field. Finally, let me mention that the ICRC published a booklet some years ago entitled Business and International Humanitarian Law with a view to helping companies better understand their rights and obligations under IHL.
Through different approaches, all these initiatives pursue the same objective: to ensure that business enterprises working in and around conflict zones adhere to recognized standards of IHL and human rights law, and to contribute to better protection for affected populations.
Non-State armed groups
Let me now turn to another aspect of the privatization of warfare. States are far from being the only or even the main actors in armed conflicts. Non-State armed groups play a major role in almost every ongoing armed conflict today. This is a reality with which we all have to contend: it affects our work on the ground and poses a number of very serious challenges.
Of course the implication of PMSCs in armed conflicts is different from the one of non-State armed groups and the idea here is not to assimilate the two. It is rather to highlight challenges faced by the ICRC in carrying out its mission and activities in an environment where non-State actors are not only multiplying, but also diversifying in terms of nature and activities.
The first challenge is, of course, how to ensure compliance with IHL and to avoid situations in which civilians bear the brunt of hostilities. The ICRC strives to maintain and strengthen dialogue with all armed groups, to ensure that they are aware of their obligations, and to gain access to individuals held by them or to people living in areas under their control. The ICRC therefore has a long history of engaging with non-State armed groups.
Secondly, from the perspective of a humanitarian organization such as the ICRC, the proliferation of non-State armed groups in the battlefield also poses challenges in term of security and access to people in need. Indeed, these armed groups are often less familiar with the work of humanitarian organizations. Here again, dialogue with these armed groups is a key element in ensuring acceptance, on the ground, of the ICRC and its unique mission, thereby guaranteeing its access to people in need and the safety of its delegates. Engaging with all parties to a conflict is essential if the ICRC is to effectively carry out its neutral and impartial humanitarian mission of protecting and assisting victims of armed conflicts.
Although, the ICRC has a long-standing experience of engaging with non-State armed groups, business enterprises are not an actor the ICRC has traditionally engaged with on an operational basis. But, the increasing presence of PMSCs in a conflict zone and the proximity of their personnel with hostilities have brought us to pay greater attention to the involvement of business in armed conflict and to engage with them.
Doing business in conflict zones entails considerable risks. The need for a strict and clearly established legal framework, known and respected by States and companies, is obvious. I would like to stress once again the importance of effective accountability mechanisms, especially in view of the difficulties that the judicial systems of countries in which PMSCs operate may encounter in conflict or post-conflict situations.
In conclusion, activities of PMSCs in armed conflict situations remain an important issue for the ICRC. We will therefore continue to actively promote the Montreux Document, in particular through regional seminars, and to assist States requiring so to implement it in their domestic law. The ICRC is also following with interest developments and discussions in respect to international regulation of PMSCs, in particular the work undertaken within the framework of the United Nations Human Rights Council. Furthermore, from an operational perspective, in some specific regions, ICRC field delegates are engaging with relevant governmental authorities on PMSCs activities, States' obligations in this respect and means of developing effective regulation. They may also engage in dialogue with PMSC personnel on applicable rules of IHL and on the neutral and impartial mission of the ICRC.
I welcome the opportunity offered to us by this year's Round Table to further discuss these challenges and I look forward to hearing your thoughts over the next two days.
Finally, let me express my warm thanks to the International Institute of Humanitarian Law for hosting this Round Table.