Making the Most of the Montreux Document

by Paul Pryce. With degrees in political science from both sides of the pond, Paul Pryce has previously worked as Senior Research Fellow for the Atlantic Council of Canada’s Canadian Armed Forces program, as a Research Fellow for the OSCE Parliamentary Assembly, and as an Associate Fellow at the Latvian Institute of International Affairs. He has also served as an infantryman in the Canadian Forces.

Photo by Jake Warga

Photo by Jake Warga

American efforts to stabilize Iraq following the 2003 invasion and disbanding of the Iraqi Republican Guard saw a resurgence in the use of private military contractors (PMCs). It is estimated that, by 2006, at least 100,000 contractors were working in Iraq directly for the United States Department of Defence, representing a dramatic increase in the number of contractors used by the US since the 1990-1991 Gulf War. It was in this context that the Government of Switzerland and the International Committee of the Red Cross (ICRC) initiated discussions on a kind of “code of conduct” for PMCs and their use in areas of armed conflict, eventually resulting in the September 2008 signing of the “Montreux Document” by several countries.

The “Montreux Document” contains approximately 70 recommendations, including proposed procedures for screening personnel, correct prosecution when breaches of conduct occur, and personnel training on international human rights and humanitarian law. It is, in truth, a non-binding and non-legal document, as no signatory can be sanctioned for failing to implement these recommendations in domestic law or practice. Yet, in the decade since the “Montreux Document” was produced, only 54 countries have signed and ratified, including 23 of the European Union’s 28 member states and the US. Interestingly, many countries which have recently employed, or are currently employing, large numbers of PMCs have still neglected to sign the “Montreux Document”, including Egypt, Nigeria, Saudi Arabia, Iran, and Russia.

The 53 Participating states of the Montreux Document.

The 53 Participating states of the Montreux Document.

This seems to suggest an ongoing lack of awareness within the international community about the destabilizing effect PMCs can have in conflict areas when accountability and a strict code of conduct are absent. In some cases, this destabilizing effect is understood and used to pursue perceived geopolitical objectives, as in the case of Iran employing PMCs in Syria. Some might argue that governments have abstained from the “Montreux Document” out of a belief that the private security industry should self-regulate, especially given the international nature of some of these companies and their operations. To that end, in 2013, the International Code of Conduct for Private Security Service Providers (ICoC PSSP) was developed, again through the leadership of the Swiss government. But only seven countries (Australia, Canada, Norway, Sweden, Switzerland, the United Kingdom, and the US), 24 civil society organizations, and 91 companies have signed on to this document, which is also non-binding and non-legal.

The ICoC PSSP goes some way toward plugging the gaps, with the 91 PMCs complying with this code hailing from 32 different countries, some of which have not yet ratified the aforementioned “Montreux Document”, such as Ghana and Colombia. The bulk of the PMCs party to the ICoC PSSP are based in the countries described in the table below.

Number of PMCs Country
15+ United Kingdom (16), United States (15)
5-14 Cyprus (7), Pakistan (6)
3-4 China (4), France (4), Iraq (3), Singapore (3), Somalia (3)

A relatively easy way to ensure more widespread compliance with the recommendations outlined in the ICoC PSSP would be for countries which have signed the “Montreux Document” to also sign the code of conduct, with their national contact points then pressuring PMCs that have abstained from the ICoC to sign on as well. This “naming and shaming” certainly could not force full compliance from all PMCs, but it would certainly expand the scope of the code of conduct to include more actors within the private security industry. If this scope is then sufficiently expanded, it may well lead to international legal bodies viewing the provisions under the code of conduct as jus cogens, fundamental principles of law that can be applied to the conduct of even those PMCs which are not party to the ICoC PSSp. As only 7 of the 54 state parties to the “Montreux Document” have also signed the ICoC, there is considerable room for this growth in scope.

It is important that this power – to name and shame PMCs which do not comply with minimum standards of conduct – be fully utilized. In the past, intergovernmental organizations, aids groups, and other actors in conflict areas have exhibited a reluctance to do so. One recent comprehensive study by American University researchers on the implementation of the “Montreux Document” found several cases in which PMCs clearly breached minimum standards of conflict but were not “named and shamed”, such as an incident in July 2010, when private security personnel opened fire on the road from Baghdad International Airport, killing one Iraqi civilian, but the United Nations Assistance Mission for Iraq (UNAMI) declined to specify which company had been involved in the incident. While this initial reluctance to name the company could be attributed to operational security needs – in particular, personnel from that company could find themselves targeted for reprisal by armed groups – the lack of transparency about the incident in years after the incident suggests a lack of appreciation for the corrective power “naming and shaming” can have for a specific company and for the broader private security industry.

In any case, that only 54 countries have signed the “Montreux Document” ten years on is hardly encouraging. A renewed effort to establish standards of behaviour for private military contractors operating in areas of armed conflict is needed, especially as the outsourcing of military operations to private contractors continues and commercial shipping comes under increased threat from piracy in the waterways of Southeast Asia, West Africa, and beyond. With that in mind, the Maritime Working Group of the forum for participants of the “Montreux Document” had its first meeting on the use of private military and security companies in maritime security on January 30, 2018.

• • •

What does the “Montreux Document”?

The “Montreux Document” …

  • recalls the pertinent international legal obligations of States, private military and security companies (PMSCs) and their personnel in situations of armed conflict;
  • contains a compilation of good practices designed to help States take national measures to implement their obligations;
  • highlights the responsibilities of three types of States: Contracting States (countries that hire PMSCs), Territorial States (countries on whose territory PMSCs operate) and Home States (countries in which PMSCs are based);
  • makes it clear that States have an obligation to ensure respect for international humanitarian law and to uphold human rights law; as a result, they have a duty to take measures designed to prevent misconduct by PMSCs and ensure accountability for criminal behaviour;
  • recalls that PMSCs and their personnel are bound by international humanitarian law and must respect its provisions at all times during armed conflict, regardless of their status;
  • recalls that misconduct on the part of PMSCs and their personnel can trigger responsibility on two levels: first, the criminal responsibility of the perpetrators and their superiors, and second, the responsibility of the State that gave instructions for, directed or controlled the misconduct;
  • provides a toolkit for governments to establish effective oversight and control over PMSCs, for example through contracts or licensing/authorization systems.

The “Montreux Document” is useful because it enhances the protection afforded to people affected by armed conflicts. It does so by clarifying and reaffirming international law, by encouraging the adoption of national regulations on PMSCs designed to strengthen respect for international law, and by offering guidance on how and in what light this should be done, based on lessons learnt. The conduct of parties to an armed conflict is regulated by international humanitarian law. Another branch of international law – human rights law – also provides protection in armed conflicts. Most of the rules (expressed as statements) and good practices assembled in the “Montreux Document” derive from international humanitarian law and human rights law. Other branches of international law, such as the law of State responsibility and international criminal law, also serve as a basis.

• • •

More information
Anna Marie Burdzy, “The Montreux Document: A Mapping Study on Outreach and Implementation“, Geneva Centre for the Democratic Control of Armed Forces, 2017

This entry was posted in English, International law, Mercenary, Paul Pryce.

One Response to Making the Most of the Montreux Document

Leave a Reply

Your email address will not be published. Required fields are marked *