Montreux Five Years On: An analysis of State efforts to implement Montreux Document legal obligations and good practices Related to operations of private military and security companies CONTRIBUTORS Editor*: Dr. Rebecca DeWinter-Schmitt, Co-Director, Initiative for Human Rights in Business, Center for Human Rights & Humanitarian Law, American University, Washington College of Law United States of America: Lead researchers and drafters: KuziCharamba, Ph.D. Candidate, Institute of Comparative Law, McGill University (access to remedy); Dr. Rebecca DeWinter- Schmitt, Co-Director, Initiative for Human Rights in Business, Center for Human Rights & Humanitarian Law, American University, Washington College of Law (determination of service; criminal accountability); Laura Dickinson, Oswald Symister Colclough Professor of Law, George Washington University (civil liability); Kristine Huskey, Associate Clinical Professor, James E Rogers College of Law, University of Arizona (due diligence in selecting, contracting, and authorizing PMSCs; due diligence in monitoring PMSC activities) Support: Mohammad Abushehab, Jeanette Bayoumi, Elizabeth Confalone, Lisa Coyle, Sariana Garcia, Todd Hanks, Roshanne Katouzian, Stephanie Macuiba, Aqsa Mahmud, David O’Brien, George Petel United Kingdom: Lead researchers and drafters: Annie O’Reilly, Legal Adviser to UN Special Rapporteur on Counter-Terrorism’s Drones Inquiry and Karinne Coombes, Lawyer and International Law Academic Iraq: Lead researcher and drafter: Terry Kay Rockefeller, International Supporter, Iraqi Civil Society Solidarity Initiative Afghanistan: Lead researcher and drafter: Dr. Leticia Armendáriz, Legal adviser and research coordinator at NOVACT – International Institute for Nonviolent Action; Lecturer in Human Rights and International Humanitarian Law at Open University of Catalonia, Barcelona. Support: Uzma Burney, Fernando Brancoli Special feature: Latin America and the Caribbean Lead researcher and drafters: Antoine Perret, Ph.D. researcher, European University Institute; Research fellow, Center for Latin American and Latino Studies, American University and Bertha Garcia, Professor, Pontificia Universidad Católica del Ecuador Support: Jillian Blake Side Bar: The United Nations: Standard setter in the use of PMSC services? Lead researcher and drafter: Lou Pingeot, Policy Advisor, Global Policy Forum Side Bar: South Africa Lead researcher and drafter: Dr.Sabelo Gumedze, Senior Researcher/Head, Research and Development Unit, Private Security Industry Regulatory Authority. Support: Mona Patel Side Bar: The Montreux Document and Sierra Leone, 2009-2013 Lead researcher and drafter: Marco Boggero, Ph.D. Candidate, Johns Hopkins School of Advanced International Studies * Lead researchers and drafters also contributed to editing the report. Khelani Clay edited the endnotes. Design and printing coordination: Felipe Daza, CoDirector NOVACT Photography: Monica Bernabé, correspondent in Afghanistan Matt Moyer, photographer, www.mattmoyer.com Layout & cover design: www.xosecobas.com ______________________________________________________________________________________________ With the support of the City Council of Barcelona _______________________________________________________________________________________________ Legal Deposit: This work is licensed under the Creative Commons Attribution-Non-Commercial – Non Derivative Works 2.5 Spain licence This work may be copied, distributed, publicly broadcast, translated and modified, provided that this is for non-commercial ends and that its authorship be recognised using the following text: DeWinter-Schmitt, R. (Editor), Montreux Five Years On: An Analysis of State Efforts to Implement Montreux Document Legal Obligations and Good Practices, (2013) Montreux Five Years On: An analysis of State efforts to implement Montreux Document legal obligations and good practices Montreux Five Years On TABLE OF CONTENTS EXECUTIVE SUMMARY 7 THE MONTREUX PROCESS FIVE YEARS ON 13 Background 13 Purpose of “Montreux Five Years On” 14 THE PRIVATE MILITARY AND SECURITY INDUSTRY IN SIGNATORY STATES 17 United States of America 17 United Kingdom 19 Iraq 24 Afghanistan 28 Special Feature: Latin America and the Caribbean 33 MEETING THE LEGAL OBLIGATIONS AND GOOD PRACTICES OF THE MONTREUX DOCUMENT 41 1. Determination of services 41 United States of America 41 United Kingdom 43 Iraq 46 Afghanistan 47 2. Due diligence in selecting, contracting, and authorizing PMSCs 51 United States of America 55 United Kingdom 61 Iraq 66 Afghanistan 69 3. Due diligence in monitoring PMSC activities 75 United States of America 76 United Kingdom 79 Iraq 83 Afghanistan 83 4. Ensuring accountability 87 United States of America 90 United Kingdom 110 Iraq 116 Afghanistan 118 5. Providing access to effective remedy 124 United States of America 128 United Kingdom 131 Iraq 135 Afghanistan 136 SIDE BARS 141 The United Nations: Standard setter in the use of PMSC services? 141 South Africa 144 The Montreux Document and Sierra Leone, 2008-2013 147 3 RECOMMENDATIONS 153 CONCLUSION 157 Appendix A: Exemplary List of Alleged Rights Violations Involving PMSCs in Iraq 161 Appendix B: U.S. Civil Cases Against PMSCs 165 Appendix C: Department of Defense Suspension and Debarments form Fiscal Year 2008 through September 2013 for Contrats Performing in Afghanistan & Department of Defense Suspension and Debarments form Fiscal Year 2005 through February 28, 2011 for Contrats Performing in Iraq and Afghanistan 168 ENDNOTES 171 4 Montreux Five Years On 5 6 Montreux Five Years On EXECUTIVE SUMMARY This year marks the fifth anniversary of 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 (Montreux Document). Supported by 46 States and the European Union, the Montreux Document restates existing international humanitarian and human rights law obligations of States, private military and security companies (PMSCs), and PMSC personnel during armed conflict. It also details Good Practices designed to help Contracting, Territorial, and Home States implement their legal obligations through national measures. Additionally, the Montreux Document suggests that the existing legal obligations and Good Practices may be instructive for States, PMSCs, and other clients and stakeholders of the private military and security industry (PMSI) beyond the context of armed conflict. With the unprecedented expansion of the PMSI, primarily in conjunction with the wars in Iraq and Afghanistan, a number of high profile incidents of alleged misconduct drew attention to the limitations of existing legal and regulatory frameworks to ensure adequate control of PMSCs and their personnel. The Montreux Document, drafted under the leadership of the Swiss government’s Federal Department of Foreign Affairs and the International Committee of the Red Cross, addressed the prevailing concern at the time that PMSCs operated in a potential legal vacuum. It reaffirms, for example, that international humanitarian law and human rights apply during armed conflict, and that States do not avoid their obligations when they contract out activities to PMSCs. It clarifies that States have an obligation to ensure respect for international humanitarian and human rights law by PMSCs and their personnel, and to adequately regulate and hold them accountable for their conduct. The Montreux Document also set the stage for other regulatory efforts, such as the development of the multi-stakeholder International Code of Conduct for Private Security Service Providers (ICoC), which is directed at PMSCs and lays out their responsibilities to respect human rights and comply with humanitarian law when providing security services. For the first time in the five years since the completion of the Montreux Document, participating States in the Montreux process and other stakeholders will convene from December 11-13, 2013 in Montreux, Switzerland to share experiences, discuss best practices, identify implementation challenges, and find ways to support wider endorsement of the Montreux Document. This report, “Montreux Five Years On,” which was drafted by a global team of academics, experts, and activists, utilizes this opportunity to provide an assessment of participating States’ efforts to meet their legal obligations and implement the Good Practices. It identifies where participating States have faced challenges in meeting their commitments, and it provides a set of country specific and general recommendations that highlight means to improve implementation, as well as noting issues that remain unaddressed by the Montreux process. The report focuses on a subset of participating States: two Contracting and Home States (the United States and the United Kingdom), two Territorial States (Iraq and Afghanistan), and a special feature on one region (Latin America and the Caribbean). The report goes on to detail and assess the U.S., U.K., Iraq, and Afghanistan’s efforts to meet their Montreux Document 7 Executive Summary commitments as captured in five categories: 1. Determination of services; 2. Due diligence in selecting, contracting, and authorizing PMSCs; 3. Due diligence in monitoring PMSC activities; 4. Ensuring accountability; and 5. Providing access to effective remedy. In addition, two side bars assess two African participating States’ – South Africa and Sierra Leone – commitment to, and implementation of, the Montreux Document. A third side bar examines