Commentary

Busting the Unaccountability Myth

For those who like to characterize private security contractors as uncontrolled, unregulated, thinly disguised mercenaries run amok, September was a bad month.

For it was on Sept. 17 that the “Montreux Document” was released. That document, 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,” was the culmination of nearly three years’ work of the both the Swiss Initiative on Private Military and Security Companies and the International Committee of the Red Cross. It also involved experts from a number of governments, including the United States, as well as other stakeholders from the private sector and non-government organizations.

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.

Why is this document important? First, it confirms that the number of private military and security contractors is growing worldwide. They operate in more than 100 countries around the world. Thus now is the time to remind states of their international obligations if they contract with such companies.

Second, as the document points out, it is not true that private military companies are operating in a legal no-man’s-land. As Paul Seger of the Directorate for International Law at the Swiss foreign ministry noted, “There are plenty of rules anchored in general international legislation, in humanitarian laws and human rights. It is not about banning military companies, but we would like to create model rules of best practice as part of a set of common legal standards of applicable international law.”

It is true that not all these practices will be welcomed by the industry. In regard to avoiding the use of contractors for activities that require the use of force, one industry leader said, “It’s unrealistic, given the current climate where protective force is used, and you can’t always depend on government force because it is not available. The WPPS (Worldwide Personal Protective Services) contract is a good example. You have to depend on market needs, because there may not be enough State Department agents. That is a decision the government made.”

Still, because the United States has given its approval, U.S. companies will not have much choice other than to comply. U.S. Department of State Legal Adviser John B. Bellinger III said, “The good practices noted in the Montreux Document provide helpful and practical guidance to states that contract with private security companies, to states on whose soil they operate, and to states in which they are based or incorporated.” He also said, “Greater reliance on contract personnel requires vigorous oversight and accountability mechanisms. The United States fully supports the application of professional standards to the operations of military and private security companies.”

And even industry trade groups, such as the International Peace Operations Association, welcome the document. IPOA’s press release said it sees the document as “an affirmation of the global value of ethical private sector operations in conflict, post-conflict and disaster relief operations.” It also noted that members already have begun to incorporate many of the “good practices” in the doctrine.

U.S. Navy veteran David Isenberg is a military affairs analyst. He is an adjunct scholar with the Cato Institute and the author of a forthcoming book, Shadow Force: Private Security Contractors in Iraq