Burkhalter: «Preserving human dignity in armed conflicts: a shared responsibility»

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Montreux, 11.12.2013 – Ansprache von Bundesrat Didier Burkhalter anlässlich der Konferenz «Montreux+5»

Five years ago, 17 states convened in Montreux to sign the Montreux Document. I have no doubt that the “Spirit of Geneva”, known to be pragmatic and result-oriented, crossed the lake on this occasion and inspired the outcome.

Today, five years on, I am happy to be here. And I am even happier that you are here to reflect upon the Montreux Document. The presence of so many delegations in this room shows that the topic is as relevant as ever.

Mankind has given itself rules to avoid that wars slip into deepest barbarism. The Montreux Document is here to remind us that these rules not only apply to States but also to Private Military and Security Companies. That we have a shared responsibility to uphold the rules established to protect human dignity in armed conflicts.

Reliance on private entrepreneurs during war is nothing new. It has played a role in wars past and present, from ancient times to the conflicts of our day. However, demand for private military and security companies has greatly increased since the end of the Cold War.

With the expansion of the private military and security industry private and military security companies have started to draw increasing attention. Today, privatisation of security is a topic high on the international agenda.

In 2007, global demand for their services ranged around $138.6 billion USD. Recent estimates suggest that by 2016, it will reach $244 billion USD, which is an increase by 76% in less than ten years.
Due to their presence in conflict areas, private security companies have an important impact on human security.  However, it is of utmost importance that the privatization of security does not undermine the states’ monopoly on the use of force and their control of legitimate violence. The principle according to which the control, sanctioning, and use of violence fall to States is universally recognised and that should remain so.

The monopoly on the use of force entails a responsibility for the States: they have to make sure that private military and security companies respect human rights norms and humanitarian law in armed conflicts.  
Because they are present on battlefields, private companies also have a responsibility and a legal obligation to respect humanitarian law and human rights norms. Upholding the basic principles of humanity in armed conflict is a shared responsibility.

As we speak, many conflicts are waged around the world. Some of them we hear about regularly, many are forgotten. But in all these wars, humanitarian law is violated on a daily basis, making the atrocity of war even worse for men, women and children; civilians and combatants. We all have an obligation to do everything in our power to stop these atrocities, which are an insult to our shared humanity.

Switzerland is firmly convinced that diplomacy should be the instrument of choice in dealing with armed conflicts. Diplomacy fosters security, because only a political solution to an armed conflict can be sustainable. For this reason, Switzerland strongly supports the international peace conference on Syria that is scheduled on the coming January 22.
But as long as war is going on, we must make sure that even in the heart of battles a minimum of human dignity be preserved. All those involved in armed conflicts have a responsibility to do so.

Humanitarian law is a pragmatic attempt to bring this spark of humanity into the hell of war. Humanitarian law is realism without cynicism. Switzerland is convinced that improving the compliance with the law of armed conflicts is not only a legal obligation but a moral duty. Insufficient protection is due today mainly to the lack of compliance with already existing laws. 

For this reason, Switzerland has launched, along with the ICRC, an initiative among State parties to the Geneva Conventions aiming to strengthen compliance with international humanitarian law. The goal is to create an institutional structure allowing states to guarantee a better respect of the rules set out by humanitarian law.

The same conviction, that a lack of compliance with existing laws is the main reason for an insufficient protection, motivates Switzerland’s engagement for the Montreux Document.

Ladies and Gentlemen,

A few years back, some critics argued that private military and security companies operate in a legal vacuum. Switzerland wanted to demonstrate that this thesis is wrong: There are rules deriving from international humanitarian law, international human rights law, State responsibility and other sources applicable to all those involved in an armed conflict, including to private contractors.

To this end, Switzerland – together with the ICRC – launched an international process that included Contracting States, Home States and Territorial States of private military and security companies.

This process was led by three guiding principles: First, achieve a result which is simple, clear and oriented towards practical implementation. Second, have a representative number of those States on board which are most directly dealing with private military and security companies. Third, achieve tangible results in a reasonable timeframe.

In order to put into action these principles, the Montreux Document takes a pragmatic approach inspired by humanitarian law. It simply reflects that the presence of private actors in armed conflicts is a fact.

The Montreux Document does not create new legal obligations. It merely recalls the pertinent international laws, applicable to States, private military and security contractors and their personnel in situations of armed conflicts and identifies good practices.

If the Montreux Document does not create new obligations under international law, then what is its added value?

As we have seen during the past five years, the Document not only serves as a reminder of existing obligations but it is also a helpful, practical tool which translates international legal obligations into good practices. They are designed to help states to implement their legal obligations through national measures.

By compiling a description of good practices relating to regulation, we wanted to make a practical contribution to the efforts of States to regulate private military and security companies. These good practices may also be instructive for post-conflict and for other comparable situations. Most of the good practices identified, such as for example to establish a licensing regime for private security providers, are ideally put into place during peacetime.
Regardless of their support for the initiative, States are bound by the international legal obligations contained in the Document, by virtue of their ratification of the Geneva Conventions and other treaties as well as by customary international law.

However, by supporting the Montreux Document, States and International organizations emphasize that certain well-established rules of international law apply to States in their relations with private military and security companies and their operation.

In this respect, the Montreux Document is a success story. Five year after its the launch, it is clear that the Document helped to establish the general understanding that States can be held accountable for violations committed by the employees of security companies that work for them.

This is particularly true if these companies exercise elements of governmental authority. In such cases, States have the same obligations and responsibilities as if they had acted themselves through their own military forces or their own agents.

Ladies and Gentlemen,

States have a responsibility to respect and enforce humanitarian law. But it is a responsibility shared, shared with private military and security contractors.

The regulation of a phenomenon such as the use of private security and military contractors on an international level is a challenge: Clear rules are needed to establish predictability, accountability and legitimacy. But the traditional instruments of international law such as international conventions take quite some time to be negotiated and achieving universality is a difficult task.

In our view, innovative approaches and methods are therefore needed to set international rules and standards and to call upon the responsibility of private military and security companies.

The Swiss approach to self-regulation of private contractors is an example for this. The Montreux Document has served as a basis for self-regulatory efforts by the industry itself. Switzerland encourages as a follow-up of the Montreux Document by the private security sector an industry-wide code of conduct that includes effective accountability mechanisms.  
The “International Code of Conduct for Private Security Service Providers” defines industry rules and principles based on human rights and international humanitarian law. This document, the first of its kind, was created in 2010. It enjoys the support of private security companies, various industry associations and humanitarian and civil society organisations.

As of November 2013, over 708 private security companies had signed the Code of Conduct, among them the biggest companies active in providing security in fragile environments. It is targeting a different audience than the Montreux Document, namely the companies themselves rather than the States. Signatory firms are determined to set standards for conducting their own business in a way that respects Humanitarian law and Human Rights Law.

The efficiency of the code derives from the fact that this was a transparent and inclusive process in which private companies publicly affirmed their responsibility to respect human rights and international humanitarian law.

The signature of the Code is only the first step in a process towards full compliance. If all clients of private security companies – in particular governments and intergovernmental organizations – require in their contracts that all services be performed in accordance with the Code of Conduct, this ‘soft law’ instrument will progressively become a quasi-mandatory standard.

As a third regulatory layer, next to the Montreux Document and the Code of Conduct, Switzerland is legislating on private military and security contractors at the national level. The Federal Act on Private Security Services Provided Abroad has been adopted in September this year by the Swiss Parliament. This Act builds on the Montreux Document and incorporates pertinent international legal obligations and good practices into national law.

The Act also builds on the Code of Conduct, as companies which provide security services abroad from a base in Switzerland as well as companies contracted by Switzerland have an obligation to become signatories to the Code. In other words, the Act ties together different layers of regulation and adds a binding element to them.

In line with Swiss neutrality, the Act bans security companies based in Switzerland from participating directly in armed conflicts abroad. Companies are also banned from conducting activities which encourage the commission of serious violations of human rights. For example, they are prohibited from operating prison facilities in a State which is known to practise torture.

To conclude on this point: Different layers of regulations were devised within few years to address the different aspects of the issue. International regulations – be they binding or non-binding – may then be complemented by national legislations or policies and become therefore mandatory.
Self-regulation of the industry is an additional and complementary layer of regulation. Combined, these different layers underscore that preserving human dignity in armed conflicts is a shared responsibility between states and private actors.

Five years after the Montreux Document was launched, hardly anyone still argues that these companies operate in a legal vacuum.

From an initial 17 States in 2008, the number of Montreux Document participants has now risen to 49 States and three international organizations, the European Union, the OSCE and, as we learned this week, NATO. Support for the Montreux Document is growing continuously.

Despite the challenges we still face, the Montreux Document is now established as a reference for all dealings with private military and security companies in the context of armed conflicts.

In the run-up to “Montreux+ 10”, we enter a new phase. Our priority should now lie on implementation.

Switzerland would like to suggest having a regular dialogue among Montreux endorsing states and International Organisations. Such an exchange will consolidate the Montreux Document process and enable the sharing of lessons learned and good practices. It will enable us to tackle together the common challenges we face.

In the years to come, our efforts will also focus on regional outreach. Regional outreach has been important in the success story of the Montreux Document. The past five years saw four Montreux regional conferences in Chile, Mongolia, Australia and The Philippines.

However, much remains to be done to increase support for the initiative in different world regions, notably in the Global South. Given the extent and diversity of private military and security companies’ activities in Africa, we will focus our efforts on this continent. For this reason, Switzerland supports the first regional conference in Africa that will probably take place next year in Senegal.

I would like to seize this opportunity to encourage States and International Organizations having not yet done so to communicate their support for the Montreux Document. We believe that wider support would enable a significant improvement of our cooperation.

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