From December 11 to 13, 2013, the Swiss Government, with the support of the International Committee of the Red Cross (ICRC) and the Geneva Centre for the Democratic Control of Armed Forces (DCAF), hosted the Montreux +5 Conference in Montreux, Switzerland. Montreux +5 brought together States, as well as representatives from international organizations, civil society, and the private military and security industry, to take stock of efforts to implement the Montreux Document on pertinent international legal obligations and good practices for States related to operations of private military and security companies during armed conflict, share experiences with regulating the industry, and identify ways to support both implementation and wider endorsement of the Montreux Document.
In a nutshell, the Montreux Document seeks to counter the perception that private military and security companies (PMSCs) operate in a legal vacuum by recalling the international humanitarian law and human rights law obligations that apply to States with regards to the activities of PMSCs during armed conflict. The second half of the Montreux Document is a compilation of good practices, detailing for Contracting, Home, and Host States how they can realize those legal obligations through national measures. Although the Montreux Document is not a binding treaty and does not create any new international law, as one academic presenting at the conference rightly noted, it is “nothing new and all new at the same time.” In other words, the Montreux Document translated existing legal commitments into the domain of the private military and security industry and allowed for a pragmatic engagement with States on the international and national regulatory environments governing the industry’s activities.
There is no doubt that the Montreux Document has been gaining acceptance. Originally supported in 2008 by 17 States and the EU, currently 49 States and two additional international organizations (NATO and OSCE) participate in the process. Four regional workshops held by DCAF have supported multi-stakeholder dialogues about regulating the industry. The Montreux Document has allowed States and other interested parties to assess where there are legal and regulatory gaps, and it spawned a second regulatory initiative, the International Code of Conduct for Private Security Service Providers (ICoC) – a set of principles directed at PMSCs to assist them in ensuring that they operate in complex environments in conformity with international humanitarian and human rights law principles.
However, two reports released in advance of the conference both indicate that State efforts to meet their Montreux Document commitments are mixed. Montreux Five Years On: An analysis of State efforts to implement Montreux Document legal obligations and good practices, written by a global team of academics, experts, and activists and published by the Center for Human Rights & Humanitarian Law’s Initiative for Human Rights in Business (IHRIB) and the International Institute for Nonviolent Action (NOVACT), takes an in-depth look at four States’ (U.S., U.K., Iraq, and Afghanistan), select States’ in two regions (Latin America and Africa), and the UN’s efforts to meet their commitments in five areas: determinations with regards to outsourcing, practices around licensing, contracting, and monitoring, and abilities to ensure accountability and provide victims access to remedies. The report provides extensive country-specific and general recommendations to States and the UN to aid them in identifying where shortcomings in implementation persist and in developing regulatory measures to meet their commitments. An event to launch the shadow report was held at Washington College of Law on December 3 and is available for viewing.
The official conference report that DCAF was commissioned to write, Progress and Opportunities, Five Years On: Challenges and Recommendations for Montreux Document Endorsing States, steers clear of faulting any specific State for particular failures to implement the Montreux Document, and highlights good practices by individual States in particular areas, rather than providing an in-depth analysis of the regulatory efforts of any one State. However, the report does identify six implantation challenges in three areas – roles and responsibilities; procedures, systems, and processes; and monitoring and accountability – and offers recommendations to address those challenges, as well as next steps forward in the Montreux process. The challenges echo a number of those found in the IHRIB and NOVACT report. To touch on a few examples, both reports suggest the need for a dialogue, clear determinations, and enforcement of provisions related to decisions on outsourcing services, although the IHRIB and NOVACT report adds that those determinations should be linked to an assessment of the potential human rights impacts associated with outsourcing a particular service. Both reports highlight that there are shortcomings in laws and regulations of Home and Contracting States, which do not allow for the sufficient extraterritorial application of laws and adequate criminal and civil liability in cases of misconduct. Both reports discuss the shortcomings in contracting, licensing, and authorization policies and procedures, as well as accompanying monitoring and enforcement mechanisms, and their inability to fully ensure that the terms of contracts, licenses, and authorizations reflect the Montreux Document commitments and are adequately adhered to, especially in relation to demonstrating PMSCs’ ability to operate in conformance with human rights and humanitarian law. The civil society voices at the conference echoed concerns about these challenges and gaps, especially in terms of establishing adequate monitoring and accountability, and granting victims of abuses access to remedy.
As is perhaps to be expected at any international conference of States dealing with sensitive issues related to security and the sovereign use of force, the information that participating States shared was somewhat limited and focused on what States are doing well, rather than an assessment of implementation challenges. At the outset of the conference, a number of States provided brief report outs on their implementation efforts to date. This information was very useful for anyone tracking the Montreux process, and in light of the fact that only 21 States submitted some type of response to the Swiss government’s and ICRC’s pre-conference questionnaire about their implementation efforts. Unfortunately, contrary to the Montreux Document’s call for transparency on the regulation of PMSCs, only one State, the United States, has made its official response public. What was clear from the report outs was that while some States find value in the Montreux Document and have used it to assess and develop their laws and policies, others find that it has somewhat limited relevance, in particular because they either do not contract with PMSCs, do not have PMSCs headquartered on their territories operating overseas, or because they already strictly regulate, limit, or forbid such services. The Private Security Monitor project has been working with DCAF and the UN Working Group on Mercenaries to develop a database detailing national regulation of the industry.
What becomes clear when one reads DCAF’s report in conjunction with the State report outs, is that there are problems with defining and understanding the boundaries of the industry and what needs to be regulated. For example, it is not always clear from States’ comments whether or not their national regulation has extraterritorial applicability and reach. Many States’ responses detailed regulation of domestic security provision, which is not directly addressed by the Montreux Document with its focus on armed conflict. Of course, that being said, the Montreux Document itself states that “existing obligations and good practices may also be instructive for post-conflict situations and for other, comparable situations.” The issue of the applicability of international standards to domestic security provision will likely surface again in discussions about creating an ISO management system standard based on the ANSI/ASIS PSC1 management system standard for quality of private security company operations.
Another boundary issue arises in relation to the applicability of the Montreux Document to maritime security. The conference evidenced that there are divisions within the maritime security industry and among governments about the relevance of the Montreux Document for maritime security. Some seem to find relevance in the spirit of the Montreux Document’s principles, especially with regards to human rights and use of force provisions, but others state outright that the Montreux Document, and its companion initiative, the ICoC, are not applicable. Many of the States present stressed the importance of the ISO/PAS 28007 in their comments, which is a voluntary, industry backed risk management standard. Unfortunately, the ISO/PAS 28007 does not make any reference to human rights and humanitarian law, and explicitly states that the International Maritime Organization does not view the Montreux Document or ICoC as applicable to deploying armed guards on ships and combating piracy and armed robbery at sea.
Finally, the boundaries and linkages between voluntary and mandatory regulation of the industry was another point of discussion. A good part of the conference revolved around the link between the Montreux Document and the recently stood-up ICoC Association. (IHRIB is a founding member of the ICoCA’s civil society pillar.) Not surprisingly, the U.S. and the U.K. are proponents of the idea that there is a fairly seamless integration between voluntary standards and State regulatory efforts. And indeed many States expressed support for the ICoCA and its efforts to ensure implementation of the ICoC and certification and monitoring of member companies. The Swiss, U.S., and U.K., backed by other nations such as Canada and Australia, are the drivers of the Montreux process, which is rooted in its origins in the Iraq and Afghanistan contracting peaks, as well as more generally in a strong commitment to involving companies in the development of any regulation. (Other European States are part of that conversation, but do not seem to be drivers as much as followers.) This has led academic Sarah Percy to argue that regulators are “regulating the last war”, i.e. that regulatory efforts are reactive in responding to challenges and lag behind current developments in the industry, to include the rise of maritime security to combat piracy. Percy argues that the “combination of a fast-moving industry and slow-moving regulation has created the impetus for self-regulation” – such as the Montreux Document and the ICoC – which she sees as “an important step, but insufficient.”
Qualms about the adequacy of voluntary regulation were expressed by States such as South Africa and Brazil, who associated the Montreux process with a forfeiture of State responsibility to regulate the industry and the use of armed force. Perhaps not surprisingly, both are among the States that support the UN Working Group on the Use of Mercenaries’ efforts to develop a binding international convention. It is unclear if these concerns motivate the relatively low participation in the Montreux process on the part of Territorial States and States in the Global South.
Despite the concerns expressed by some conference participants about the adequacy of voluntary regulation and the mixed track record on State implementation of Montreux Document commitments, the conference did offer a valuable opportunity to assess the last five years of progress in regulatory efforts and to identify steps forward. Those States that support the Montreux process and a combination of voluntary and mandatory regulation would like to use the ICoCA’s Montreux Document Participant Advisory Forum as a venue for sustained dialogue on implementation efforts, to share best practices, and conduct outreach to other States. The Swiss government suggested that while the Advisory Forum could serve a useful role, a separate body was needed. Much in line with the recommendations of the DCAF report, there seems to be general consensus around the need for greater outreach to bring in more States from the Global South; the value of coordinating with other regulatory initiatives; the need for a regular, sustained dialogue, rather than waiting another five years for the next convening; and the value of sharing good practices and developing implementation tools, such as contract templates, model laws, and trainings. (IHRIB recently held a series of webinars examining training requirements related to the activities of PMSCs.) It seems likely that at least some of these recommendations will be followed up on, if for no other reason than that States who support the ICoCA want to see the Montreux Document Participant Advisory Forum built out to bring in more States into the ICoCA, while the Swiss do not want to cede their leadership in the Montreux process – a healthy competition that seems likely to drive action.