Military outsourcing and the respect for International Humanitarian Law: the Montreux Document and ICoCA

US Army soldiers conduct a test of a delivery system from the military contractor Blackwater (now Academi) near Kabul, Afghanistan, in 2007. Photo: soldiersmediacenter (afghanistan) (CC BY 2.0). Elcano Blog
US Army soldiers conduct a test of a delivery system from the military contractor Blackwater (now Academi) near Kabul, Afghanistan, in 2007. Photo: soldiersmediacenter (afghanistan) (CC BY 2.0). Elcano Blog
US Army soldiers conduct a test of a delivery system from the military contractor Blackwater (now Academi) near Kabul, Afghanistan, in 2007. Photo: soldiersmediacenter (afghanistan) (CC BY 2.0).

Privatization of armed conflicts has spread over these two last decades and, with it, stakeholders involved. Armed forces’ externalization and military outsourcing in the aftermath of the so-called “overall fight against terrorism” led to a series of intergovernmental meetings which, with the support of a network of experts on Business & Human Rights, humanitarian organisations, security and defence organisations and civil servants, national and international alike, resulted in the drawing up of the Montreux Document. This is a first comprehensive approach in the world intended to assist States to implement their obligations under international humanitarian law and human rights law, and to recall certain existing international legal obligations of States regarding private military and security companies (PMSCs), leaded by the Swiss Government and the International Committee of the Red Cross (ICRC).

In virtue of this intergovernmental agreement, signed in the Swiss city of Montreux in September 2008, the aim is that private military and security companies (PMSCs) inset international humanitarian law into their obligations –and also rights–, in so far as they carry out their liabilities in conflict-affected areas through State regulation. It is important to remark that this agreement moves in the terrain of ‘soft law’, so that it is not binding. Furthermore, as it is a ICRC-led project, its scope also belongs to international administrative law. It contains roughly more than 70 guidelines, recommendations and best practices which are primarily addressed to States, which are divided in four main categories (Contracting States, Territorial States, Home States, Other States), without prejudice that companies are also called to learn from and apply every single best practice contained in the Montreux Code in their day-to-day work. To ensure proper enforcement of these standards, the document articulates, inter alia, internal regulation monitoring –ranging from bribery and corruption to disproportionality in the use of force–, follow-up mechanisms of accountability, informant protection and regular performance reporting.

This document tries to clarify the treatment of hard-to-reach, unclear humanitarian categories for PMSCs staff in their service performance: in an international armed conflict, private armed forces are to be categorized as “civilians accompanying the armed forces”, and they may gain prisoner-of-war status in the event of kidnapping; in an internal conflict, they will be classified under the “rebel soldier” label. This legal-based effort is significant due to its protection-related policy implications. Likewise, it settles the issue of conceptual doubt about personnel on whether they act as a high-level military or civilian, most notably when the Contracting State grant the company the power to exert public competences as regards regular armed forces. However, in practice this latter idea is limited. This to-be-solved questions may be harmonized with 1949 Geneva Conventions provisions. However, it is important to be critical by considering that these legal categories have not been fully fulfilled and there is still a lot to be done, and the United Nations was not invited to participate in the drawing up of the document.

In order to manage specific particularities of such implemented situation convincingly and in a fact-checked manner, in 2013 a multi-stakeholder initiative was set up aimed at monitoring, not the interlocking of the aforementioned principles, but abuse allegations on the part of these companies, and its subsequent ascertainment. Through this entity (ICoCA) which bears responsibility for the compliance and justice when coping with these complaints by means of the International Code of Conduct for Private Security Providers, States, private security companies and civil society organisations can get the certificate which demonstrates compliance with Code principle.

Under the umbrella of commitment with good governance, the respect for human rights and international humanitarian law, and the highest standards of professional conduct, 96 private military companies have already signed this document, as agreed upon. Of this, only two Spain-based entreprises have done so: Undercover Global S.L.U. or UC Global since September 2016, and Segur Ibérica S.A. since June 2017, having the latter one initiative a winding-up process only a month later. The first one, with chapters in Mauritania, Qatar, Bolivia, United States and other countries, performs most of its tasks abroad, in particular as regards maritime security, military training to on-the-ground units, and early response provisions in life-threatening areas. This Spanish presence represents a 4% of the total of EU countries. Comparatively, 15 US-backed companies have ratified the same document, 16 in the United Kingdom, and in France and China the figure is four. No company coming from the Russian Federation has signed up to it.

As for policy-related tools addressed to undersigned countries, Switzerland and DCAF (Geneva Centre for the Democratic Control of Armed Forces) set out a Legislative Guidance Toolkit. Its importance is due to the fact that, if a private military company which is hired by a State infringes international humanitarian law or domestic law, the State always holds accountable for it as it has the duty to ensure a fair contracting process of adequate services. However, this does not mean that a subsidiary responsibility might lie with the PSMC, and concretely with its staff as persons in conflict subject to international humanitarian law. Only seven countries have ratified the document, thus accepting the possibility of accountability by themselves: Australia, Canada, Norway, Sweden, Switzerland, United Kingdom and United States. European Union is promoted from 2012, and its last wake-up call was issued in 2017 through a report in the European Parliament on private security companies.

As regards Spain, it joined the Montreux Document in May 2009. This is in line with the amendment, the same year, of Royal Decree-Law 2364/1994, which deals with Rules of Procedure on Private Security. In that way, whilst Spain has mimicked more than 170 countries by signing the Montreux document which regulates companies’ principles when on duty, it is remarkable that the same country has not done so with the Code of Conduct, whose field of action and scope transcend mere principles and manage monitoring and the protection and provision of remedy, redress and reparation to abuse victims when private companies, which are hired by a State, do not comply with international and national pledges.

It would appear that the implementation of “Protect, Respect and Remedy” framework under the UN Guiding Principles on Business and Human Rights made us acutely aware of the need to be watchful with links –sometimes blurred or invisible– between non-state actors which are not necessarily armed groups, but military multinational businesses, and public power. The issue about financial viability and costs of this externalization has been addressed by the Spanish Ministry of Defence. However, nature of war is varying –hybrid wars, new technologies, bioterrorism or Artificial Intelligence– and, with that, private military companies are following this path. Willingness of concerned parties will determine whether these shifts, previously warned by the UN Working Group on the use of mercenaries in 2010, shall be accompanied, under the ‘soft law’, by adaptation to hard-to-detect scenarios, revolution in civil-military relations, resolution of legal loopholes, and a guarantee of the respect for human rights.