Private military and security companies need to be held accountable

Fifteen years ago, the Montreux Document regulating private military and security companies and their actions was inked in Switzerland. But today more needs to be done to further hold the industry to account, argues Jean-Michel Rousseau, interim Head, Business and Security Division for DCAF – Geneva Centre for Security Sector Governance.

Whether Blackwater, Executive Outcomes, or the Wagner Group – private military and security companies (PMSCs) have been around for decades. International headlines focus on their use in armed conflicts – be it war crimes and human rights violations, manipulative exploitation of natural resources, or assertions of geopolitical interests.

But these actions are just the tip of the iceberg: today, an industry worth hundreds of billions of dollars with millions of employees provides an ever-growing number of services in basically every country and on the high seas, from guarding supermarkets and transportation hubs to surveillance services to combat logistics. They are now so commonly used that they were deemed an essential service by many countries during the COVID pandemic. Therefore, any approach to the industry needs to be systemic in nature.

Regulation of the industry has always been driven by events. 15 years ago, incidents such as the killing of Iraqi civilians by Blackwater employeesExternal link in Baghdad’s Nisour Square led to an international response that spawned the creation of the Montreux DocumentExternal link (2008) and of the International Code of Conduct for Private Security ProvidersExternal link (2010), outside of the UN system but with significant State backing. This was a pragmatic solution to a pressing humanitarian problem, spearheaded by Switzerland and – in the case of the Montreux Document – the ICRC.

The exactions committed by the Wagner Group – highlighted for example in a recent fact-finding reportExternal link from the UN Human Rights Office – have again focused international attention on the challenges posed by PMSCs. This political momentum needs to be seized upon to assess the current state of regulation of the industry and strengthen it particularly at national levels.

What has already been achieved

The Montreux Document and the International Code of Conduct for Private Security Providers (‘the Code’) formulated good practices and highlighted the applicability of existing international norms to ensure more effective regulation, oversight, and accountability of the industry.

They also bolstered political will: in the last 15 years, State support for the Montreux Document has more than tripled (passing from seventeen countries to fifty-eight countries and three regional organisations) and 126 companies are now members of the AssociationExternal link that oversees the Code’s implementation. Since 2010, an intergovernmental processExternal link has also in parallel discussed a potential UN text.

The existing frameworks have compiled a body of norms and good practices that have proven their effectiveness – when implemented. A 2022 studyExternal link looked at how States hire PMSCs services and concluded that human rights violations are three-quarters lower when a State supports the Montreux Document. Specialised centres have developed an array of tools and specialist advisory services to support national and regional actors in their endeavours – the Geneva-based Centre for Security Sector Governance (DCAF)External link for example has supported more than thirty reform initiatives across the globe. Finally, meaningful reforms have taken place in contexts where multi-stakeholder processes bringing together public institutions, civil society and the private sector have jointly formulated recommendations and driven their implementation.

Remaining challenges

Legally speaking the norms and good practices currently in place apply only to PMSCs operating in armed conflict (Montreux Document) respectively “complex environments” (International Code of Conduct). This is a pity given that by now PMSCs services are provided well beyond these contexts and the norms have consistently shown their relevance across the board.

The Montreux Document covers States’ obligations with regards to companies but does not address cases in which individual nationals are recruited by companies based in other countries (so-called “States of nationality”).

Neither the Montreux Document nor the International Code of Conduct contain specific guidance on how PMSCs can use of force and how this need to be done differently from public security forces and the military. Also, no international legal norm currently forbids the direct participation of PMSCs in hostilities.

This said, the number one challenge DCAF observes when advising on regulation of PMSCs is insufficient regulation and accountability at the national level. It is true that some PMSCs commit particularly atrocious human rights abuses, but it is systemic gaps which allow these to take place. In fragile contexts (and beyond), national legal and policy frameworks often are still inadequate and regulatory bodies and judicial institutions who would enforce them lack the resources to do so. This challenge is compounded by the increased diversification and sophistication of services provided by PMSCs – think instant facial recognition to determine who can enter a guarded shopping mall or private surveillance services generating troves of data.

An additional point concerns the continuing diversification in the industry: a vast array of countries – from China and Russia to Turkey and the United Arab Emirates – now hires or hosts PMSCs, yet not of all ‘newcomers’ have created regulatory frameworks.

Finally, some governments are actively looking to engage with actors like the Wagner Group to further their geopolitical interests and are simply not interested in abstract considerations about good governance and accountability.

What can be done?

A new international document under the UN framework could potentially incorporate elements not covered by the Montreux Document and the Code of Conduct, such as expanding their formal scope beyond armed conflict and complex environments, specifying State remedies for individual victims, providing clear guidelines on use of force, and forbidding direct involvement in hostilities (especially when it comes to the actual use of force). It could also “upgrade” the good practices contained in these documents by making them legally binding. This said, the corresponding intergovernmental process has been going on for close to 15 years and it is unclear whether it will yield a consensus any time soon. And even if a document were to be passed, the low level of ratification of the UN Mercenaries Conventions (adopted in 1989 and so far, only ratified by 37 of the 193 UN member states) should serve as a warning that a new text cannot, in itself, tip the scales.

The key challenge that can be quickly addressed is regulation, oversight, and accountability at the national level. The current interest in the industry generated specifically by the Wagner Group should be leveraged into a systemic approach to jumpstart reform in the PMSC industry. This requires a push by actors in government but also in civil society, media, the private security, regional organisations, and the international community. Concretely, these actors need to keep generating knowledge on the industry that can then be used to update legal and policy frameworks, make resources available for regulatory bodies, and empower accountability mechanisms such as national judicial institutions, Human Rights Institutions, or regional and international courts. And such an effort should not be limited to countries where PMSCs are currently committing the most serious human rights violations, but – in a preventive approach – go much wider.

We have come a long way from the 2000s. It is now clear that PMSCs do not operate in a legal vacuum, and we have a wide array of international norms and tools that can be used to regulate them. The key missing piece is the political will at the national level, and sufficient regional and international pressure, to make it happen.