Priv.-Doz. Dr. Thilo Rensmann LL.M. International Humanitarian Law The Montreux Document on private military and security companies Full Document Governments acknowledge duty to control private military and security companies International Committee of the Red Cross, 19 September 2008 A meeting in the Swiss town of Montreux has reaffirmed States’ obligations regarding private military and security companies in war zones. Two key points of a document agreed by 17 nations are that delegating tasks to a contractor does not relieve a State of its responsibilities, and that governments should not let contractors take part in combat operations. The Montreux document reaffirms the obligation on States to ensure that private military and security companies operating in armed conflicts comply with international humanitarian and human rights law. The document also lists some 70 recommendations, derived from good State practice. These include verifying the track record of companies and examining the procedures they use to vet their staff. States should also take concrete measures to ensure that the personnel of private military and security companies can be prosecuted when serious breaches of the law occur. "Ideally, States should not task private contractors to take an active part in combat operations," said Philip Spoerri, ICRC director for international law. "Combat functions in armed conflicts should remain the responsibility of governments and should not be outsourced to private contractors." So far, 17 countries (Afghanistan, Angola, Australia, Austria, Canada, China, France, Germany, Iraq, Poland, Sierra Leone, South Africa, Sweden, Switzerland, Ukraine, the United Kingdom and the USA) have agreed on the Montreux document, named after the town on Lake Geneva where government experts met from 15 to 17 September 2008 to discuss how to better regulate private military and security contractors. The Swiss foreign ministry launched the initiative in 2006, and the ICRC has been closely associated with it since the outset. The private military and security industry was regularly consulted during the process, as were NGOs. Paul Seger, legal advisor to the Swiss foreign ministry, stressed that the Swiss initiative had a purely humanitarian aim. "We wanted to counter the perception that there are legal loopholes when States subcontract military or security tasks to private companies. The contrary is true: in situations of armed conflict, international humanitarian law applies to both the State and the private contractor," said Mr Seger. "It is very important that the administrative and legal measures recommended in the document are now implemented by the countries that support it." Switzerland is encouraging other States to join the initiative. The ICRC underlined the benefits of the Montreux document for countries and people affected by armed conflict. "The paper provides an excellent basis on which the ICRC can discuss issues of humanitarian concern with all countries where private military and security companies operate, or where these firms are based," Mr Spoerri pointed out. “Because of its very practical recommendations, it will be especially useful for those States that have weak governments or are struggling with the impact of armed conflict, but want to regulate such companies on their territory.” Priv.-Doz. Dr. Thilo Rensmann LL.M. International Humanitarian Law INFORMAL SUMMARY OF THE MONTREUX DOCUMENT BY SWITZERLAND 1. Private military and security companies (PMSCs) are nowadays often relied on in areas of armed conflict – by individuals, companies, and governments. They are contracted for a range of services, from the operation of weapon systems to the protection of diplomatic personnel. Recent years have seen an increase in the use of PMSCs, and with it the demand for a clarification of pertinent legal obligations under international humanitarian law and human rights law. 2. The Montreux Document seeks to meet this demand. The result of a joint initiative by Switzerland and the International Committee of the Red Cross (ICRC) launched in 2006, it recalls existing obligations of States, PMSCs and their personnel under international law whenever PMSCs – for whatever reason – are present during armed conflict. In a second part, it contains a set of over 70 good practices designed to assist States in complying with these obligations. Neither parts are legally binding, nor are they intended to legitimize the use of PMSCs in any particular circumstance. They were developed by governmental experts from seventeen States1 with a particular interest in the issue of PMSCs or international humanitarian law. Representatives of civil society and of the PMSC industry were also consulted. 3. Part I differentiates between contracting States, territorial States and home States. For each category of States, Part I recalls pertinent international legal obligations according to international humanitarian law and human rights law. The question of attribution of private conduct to the State under with customary international law is also addressed. In addition, Part I devotes sections to the pertinent international legal obligations of “all other States”, to the duties of PMSCs and their personnel, as well as to questions of superior responsibility. 4. Like Part I, Part II also differentiates between contracting States, territorial States and home States. The good practices draw largely from existing practices of States not only directly with regard to PMSCs but also, for instance, from existing regulations for arms and armed services. They range from introducing transparent licensing regimes to ensuring better supervision and accountability - so that only PMSCs which are likely to respect international humanitarian law and human rights law, through appropriate training, internal procedures and supervision, can provide services during armed conflict. 5. In the preface of the Montreux Document, the participating States invite other States and international organisations to communicate their support for the document to the Federal Department of Foreign Affairs of Switzerland. .