The Privatisation of Military and Security Functions and Human Rights

The killing of 17 Iraqi civilians in Nisour Square, Baghdad on 16 September 2007 by armed employees of the United States-based Blackwater company shone a spotlight on the activities of private contractors in conflict and post-conflict zones around the world. The limited mechanisms and forms of accountability for human rights violations by private military and security contractors (PMSCs) at both the national and international levels were starkly revealed by this incident, and, in part, contributed to parallel efforts to bring some uniformity to very uneven national regulation (currently ranging from severe restrictions in South Africa,1 to forms of licensing in the United States (US),2 to self-regulation in the United Kingdom (UK)3) by means of international standards and regulation. The first international approach to be mentioned is the Swiss/International Committee of the Red Cross (ICRC)-initiated Montreux process, which is centred upon the Montreux Document endorsed on 17 September 2008 by 17 states (including the US, the UK, France, China, Iraq, Afghanistan, Sierra Leone and South Africa). This Document affirms the international obligations under international humanitarian law and international human rights law of states in which PMSCs are based (home states), as well as states who engage PMSCs (contracting states), and those where they carry out their functions (territorial or host states). In addition to identifying ‘hard’ laws binding under custom or treaty, the Montreux Document also lists ‘soft standards in the form of 73 “good practices”, which may lay the foundations for further practical regulation of PMSCs through contracts, codes of conduct, national legislation, regional instruments and international standards’.4 Though it invokes a mixture of hard and soft law, the Document itself is not in the form of a treaty and, as recognised in its Preface, is therefore ‘not a legally binding instrument and so does not affect existing obligations of States under customary international law or under international agreements to which they are parties’.5 As a piece of soft law, adopted outside any formal organisational structures, its claim to identify existing obligations while proposing good practice may seem be wholly constructive, but there are problems with the Montreux Document, not least in the fact that an ad hoc group of 17 states clearly cannot represent the wider international community. Having said that, the involvement of the ICRC does increase its legitimacy, as does the fact that it is open to other states to endorse (the total number of states supporting the Document is now 35).6

Accountability · Convention · General assembly · Human rights · International human rights law · Political science · Sierra leone · Socioeconomics · Sociology · Treaty · International Law and Aviation · International Law and Human Rights · Law · Military and Defense Studies · Public Administration

• Are There “Inherently Sovereign Functions” in International Law

  Open Access•Frédéric Mégret•American Journal of International…•2021

  Add to list

• The regulation of private military and security companies

  Open Access•Berenike Prem•Arms Control•2021

  Add to list