Regulation of private military and security companies

Since the end of the Cold War, the use of services provided by private military and security companies (PMSCs) has risen sharply. Today, PMSCs are a major component of armed conflicts and private security more generally.

The private security sector encompasses a wide range of services in armed and non-armed conflicts. These include the protection of persons, surveillance of property and buildings, support for the armed forces, intelligence activities, the taking of prisoners, the operation of prisons, the operation and maintenance of weapons systems, as well as consulting, auditing and risk analysis services for proxies.

The Montreux Document[1] and the International Code of Conduct[2] are both documents that regulate the activities of private military and security companies.

The Montreux Document

Created on the initiative of the Swiss government and the International Committee of the Red Cross (ICRC), the Montreux Document was adopted by 17 States in 2008. At present, 56 States and 3 international organisations – the European Union, OSCE and NATO – are signatories[3].

The legally non-binding[4] Montreux Document brings together the relevant international legal obligations relating to PMSCs issues. It encourages States to adopt national regulations and provides guidance on the adoption of good practices.

 The International Code of Conduct

The International Code of Conduct is also the result of a multi-stakeholder initiative launched by Switzerland. This document aims to highlight the principles of human rights as well as national and international law. There are currently 137 members, including some PMSCs, governments and civil society organizations.

The Code does not replace the control exercised by the competent authorities and does not alter IHL or human rights. It addresses the conduct of PMSCs personnel on the basis of IHL, and the principles relating to the management of PMSCs.

Legal complementarity

The Montreux Document and the Code of Conduct are complementary. The former deals with the responsibility of States and private military and security companies, and the obligation to respect human rights and international humanitarian law[5]. The latter supports the Montreux Document, but focuses more specifically on the domestic policy of PMSCs. From these two documents, some main foundations emerge that can be applied by States, private military and security companies and their personnel.

Some main rules 

  1. Responsibilities and Obligations – States
    A State cannot subcontract all its tasks to a PMSC[6]. The latter must ensure that IHL and human rights are respected, prevent any possible violation[7], and provide the criminal responsibility of PMSCs[8]. Under the principles of the Geneva Conventions, the State must refer grave breaches, such as the intentional killing of a civilian, inhuman treatment, and international crimes as war crimes, torture, genocide to a court. In certain circumstances, the latter is also criminally responsible for the acts of PMSCs[9].
  2. Requirements – States and PMSCs
    Certain measures need to be put in place by States and PMSCs, such as licensing or review of the company’s background for the selection of the company[10] and its personnel[11], comprehensive training in IHL, human rights, international criminal law, and individual identification of each member during the missions[12].
  3. Responsibilities and obligations – PMSCs and its personnel
    PMSCs are not directly subject, as a legal entity, to IHL or human rights[13]. In order for it to be bound by them, national legislation must be in force.
    However, PMSCs personnel are directly bound by the IHL applicable to all States parties to a conflict and to any individual linked to the conflict[14]. The general rules of conduct for PMSCs personnel require that all persons be treated with humanity and dignity and that any abuse be reported[15]. Prohibitions on torture and other cruel and inhuman practices[16], sexual exploitation and gender-based violence[17], human trafficking[18], forced labour[19] and child labour[20] are mentioned more specifically.

3.1 Incident reporting

PMSCs are also required to have an incident reporting system in place. If necessary, this system allows for an internal investigation, leading to a report to the client and, if necessary, to the competent authority[21].

Thus, the Montreux Document and the Code of Conduct provide some legal and practical guidance to States and PMSCs, aiming to positively impact the private security sector. However, given the national and international nature of private security, a key question can, therefore, be asked: should there not be greater collaboration between governments, the public and private sectors to improve the framework conditions for the work of PMSCs?

[1] “The Montreux Document on Relevant Legal Obligations and Good Practices for States related to the Operations of Private Military and Security Companies during Armed Conflict”, Federal Department of Foreign Affairs / ICRC, 17/09/2008: https://www.eda.admin.ch/dam/eda/fr/documents/aussenpolitik/voelkerrecht/20192511-montreux-document_FR.pdf. All websites have been consulted between 14/05/20 and the 03/06/20.

[2] “The International Code of Conduct for Private Security Service Providers”, International Code of Conduct Association, 2013: https://www.icoca.ch/en/the_icoc

[3] “Participating States to the Montreux Document ”, Federal Department of Foreign Affairs: https://www.eda.admin.ch/eda/fr/dfae/politique-exterieure/droit-international-public/droit-international-humanitaire/entreprises-militaires-securite-prives/etats-participant.html.

[4] Art.3 & 4, Document de Montreux, 17/09/2008: https://www.eda.admin.ch/content/dam/eda/fr/documents/aussenpolitik/voelkerrecht/20192511-montreux-document_FR.pdf

[5] Art. 14,  International Code of Conduct, ICoCA, 11/2010: https://www.icoca.ch/fr/the_icoc

[6] For example, a PMSC may be engaged to monitor prisoner of war camps, but this task remains under the responsibility and liability of the State.

[7] Art. 3, 9, 14 & 18, Document, op. cit.

[8] BP 19a, 49 & 71, Document, op. cit.

[9] BP 16 to 45, Document, op. cit.

[10] BP 26-39, Document, op. cit.

[11] Art.43-49, Code, op. cit.

[12] BP2-12, Document, op. cit. & art. 43, Code, op. cit.

[13] Art. 22, Document, op. cit.

[14] Art. 26, Document, op. cit.

[15] Art. 28, Code, op. cit

[16] Art. 35-37, Code, op. cit.

[17] Art. 38,  Code, op. cit.

[18] Art. 39, Code, op. cit.

[19] Art. 40, Code, op. cit.

[20] Art. 41, Code, op. cit.

[21] Art 63, Code, op. cit.