The Special Court for Sierra Leone

In September the Swiss Initiative on Private Military and Security Companies and the International Committee of the Red Cross published the The Montreux Document on Private Military and Security Companies PDF , described by David Isenberg:

The document, while not legally binding, recalls existing obligations regarding private security companies during armed conflict and identifies good practices to assist states in ensuring respect for international humanitarian law and applicable human rights law, and in otherwise promoting responsible conduct in their relationships with private security companies during armed conflict.

The document was signed by Afghanistan, Angola, Australia, Austria, Britain, Canada, China, France, Germany, Iraq, Poland, Sierra Leone, South Africa, Sweden, Switzerland, Ukraine and the United States. The signatories represent an interesting mix of past and present experience with private contractors. Afghanistan and Iraq are obvious choices, by dint of the enormous presence of contractors in those countries.

The United States and Britain, which are the world’s largest users of contractors presently, and the countries where the vast majority of private security contractors are headquartered, also must be included.

Finally, Angola, Sierra Leone and South Africa were all countries that had to deal with the now defunct Executive Outcomes, the mother of all security contractors. EO, based in South Africa, had fought in the civil wars in Angola and Sierra Leone. As a consequence, both South Africa and Sierra Leone had passed some of the most detailed legislation anywhere in the world on how to regulate private security contractors.

The document is divided into two sections. The first highlights existing international laws with which such companies should comply. The bottom line is that under existing international law, states cannot circumvent their obligations by using private military contractors. They have to take appropriate measures to prevent any violations of international humanitarian law and human rights law and to provide the necessary remedies for the suppression of such violations. They are directly responsible for the conduct of contractors if these enterprises act in a governmental capacity.

The second lists some 70 “good practices” for assisting countries in fulfilling their legal obligations. These include: avoiding the use of contractors for activities that clearly require the use of force; states must assure the good reputation of companies they send abroad, and they are encouraged to create a system of control, surveillance and sanctions in case of breaches; companies should be regulated and licensed; and the personnel from these companies, among other things, must be trained in the rules of international humanitarian law.

To its credit, the IPOA, the PMSCs trade and lobbying association welcomes the document.  I am not the biggest admirer of the IPOA, but to their credit, they have supported accountability to a much greater extent than the Bush Cheney administration has done.  The Bush Cheney administration employ PMSCs precisely in order to circumvent the law and avoid accountability.  It is their way of deregulating the military, just as the Republicans have done to the banks.

The big drawback to the document is that it is not legally binding, but it articulates important points that need to be considered when states employ PMSCs.  It recommends the same principles for private entities and corporations that employ PMSCs, but does not really get into much depth or detail regarding private employers, other than recommending they follow the same practices.

The Montreux Document on Private Military and Security Companies PDF does a particulary good job of defining PMSCs, and the role of states in relation to PMSCs.   It divides involved states into contracting states, territorial states, and home states as follows:

That for the purposes of this document:

a)  “PMSCs” are private business entities that provide military and/or security services,  irrespective of how they describe themselves. Military and security services include, in  particular, armed guarding and protection of persons and objects, such as convoys, buildings and other places; maintenance and operation of weapons systems; prisoner  detention; and advice to or training of local forces and security personnel.

b)  “Personnel of a PMSC” are persons employed by, through direct hire or under a  contract with, a PMSC, including its employees and managers.

c)  “Contracting States” are States that directly contract for the services of PMSCs,  including, as appropriate, where such a PMSC subcontracts with another PMSC.

d)  “Territorial States” are States on whose territory PMSCs operate.

e)  “Home States” are States of nationality of a PMSC, i.e. where a PMSC is registered or  incorporated; if the State where the PMSC is incorporated is not the one where it has its  principal place of management, then the State where the PMSC has its principal place of  management is the “Home State”.

The document includes the subcontractors as part of the contractual obligations of the states involved and the PMSCs.

Following are the first four of the understandings that guided this document:

1.  That certain well-established rules of international law apply to States in their relations with  private military and security companies (PMSCs) and their operation during armed conflict,  in particular under international humanitarian law and human rights law;

2.  That this document recalls existing legal obligations of States and PMSCs and their  personnel (Part One), and provides States with good practices to promote compliance with  international humanitarian law and human rights law during armed conflict (Part Two);

3.  That this document is not a legally binding instrument and does not affect existing  obligations of States under customary international law or under international agreements to  which they are parties, in particular their obligations under the Charter of the United  Nations (especially its articles 2(4) and 51);

4.  That this document should therefore not be interpreted as limiting, prejudicing or enhancing  in any manner existing obligations under international law, or as creating or developing new  obligations under international law;

The first two understandings state that there is already applicable international law regarding the employment and conduct of PMSCs.  The second two understandings make it clear that this document is nonbinding, and does not create any new obligations under international law.

On the plus side, the accountability described in the document is supposed to come from the three categories of states involved in the contracting process, and is not dependent on international law except in its guiding principles.

The gigantic problem that is not mentioned is how do you enforce either the guidelines or the law.  We have seen in Iraq, even in circumstances when there have been serious and visible violations of applicable law, even under the jurisdiction of military justice, bringing perpetrators to justice, collecting and preserving evidence, and finding witnesses is close to impossible.  So until there is law that is binding, and has both reach and teeth, accountability will be elusive and PMSCs will be outside the law.  We hope that the Montreux Document will begin to bring some influence and pressure between states to move in the direction of accountability.