Humanitarian Security and the State’s Monopoly of Force

I am going to assume that everyone participating in INSSA knows that humanitarian relief organizations and other NGOs operate in regions of the world where their work is desperately needed but not uniformly welcome. Many NGOs operate in regions of the world where one faction or another derives its power from creating insecurity and instability. Humanitarian relief threatens that power base. In other situations, the absence of government authority fosters brigandage. The brigand may not be opposed to the NGO’s purpose, but it is not serving his purpose – which is to promote his wealth and power at the expense of anyone with anything he wants and who cannot prevent him from taking it. Although acceptance is preferred, in many cases it is not practical as a security method. As a result, more effective security measures are necessary. Protection of staff and resources must be considered in every circumstance. Deterrence is sometimes necessary. The reality is that every major international humanitarian relief organization has, at some time, had to contract for private security services to enable this deterrence.

 

Private Security Companies (PSCs) are, therefore, a risk management tool to enable the NGO to be able to accomplish its mission where acceptance is not a viable option and where the NGO has decided that providing assistance cannot wait until the host nation, the UN, or another international organization can provide a secure environment in which to operate. PSCs, however, are a risk management tool that bring their own risk. Incompetency, misconduct, and general boorish behavior or some things which have been associated with PSC operations. Such conduct can damage the reputation of the NGO, turn the population (and the local government) against the NGO, and open the NGO to liability and financial loss. Even misconduct on the part of another PSC can affect the reputation and effectiveness of a good PSC…and those who contract with it. PSCs, therefore are a risk management tool that themselves present a risk to be managed.

 

The use of coercive force and violence in a sovereign prerogative of States. (Sometimes called the “government monopoly of force.”) This is true even for the inherent right of self-defense. Although the right to self-defense exists and is inalienable, the Government has the right to limit the means and methods which can be used in self-defense, even when that same government cannot provide any reasonable assurance that public security forces, such as police and military, can provide for public protection. Modern PSCs arose to fill that gap, providing a means for self-defense of private persons, activities and their properties while operating within the limits of what the government allows in terms of means and methods. In most countries of the world, even those in peaceful and stable environments, PSCs operate in the same space as police and, in many or most cases, outnumber police. In these circumstances, the authorizations under which PSCs operate are clearly an example of a government authorization for the use of force. But what about the ungoverned spaces (or effectively ungoverned spaces) where many NGOs operate? What is the accountability for the use of force, the authorization which makes the NGO stand out from the brigands and points the way for the re-establishment of peace and justice?

 

A little more than six years ago, representatives from seventeen governments, working under the sponsorship of Switzerland and the International Committee of the Red Cross, concluded a non-binding agreement known as “The Montreux Document on Pertinent Legal Obligations and Good Practices for States related to Operations of Private Military and Security Companies During Armed Conflict.” This document addresses common ideas for the use of PSCs and Private Military Companies (not the same thing) which were applicable in different areas of the world and under the authorization of different governments. It covered universally applicable obligations under the law of armed conflict and also recommended practices for States to consider when developing regulation, legislation, or policy affecting the use, operations, and incorporation of these companies. The Montreux Document addresses the States who hire PSCs, the governments where PSCs operate, and the home States of PSCs, where the companies are registered or from which they conduct their business. The document has broad acceptance and is currently endorsed by 51 governments and three inter-governmental organizations.

 

Despite the title, the Montreux Document is NOT exclusive to States or conditions of armed conflict. The best practices, in particular, are equally relevant to NGOs that might consider hiring PSCs in conditions which are comparable to those of armed conflict, although nominally post-conflict or other situations where the levels of violence and loss or protection place NGO staff and operations at particular risk. The Preface to the Montreux Document include the following text, “That while this document is addressed to States, the good practices may be of value for other entities such as international organizations, NGOs and companies that contract PMSCs, as well as the PMSCs themselves.” The good practices of the Montreux Document, therefore, can and should be used by security managers of NGOs when considering the use of PSCs. This consideration should not only guide the security manager in his recommendations regarding the use of PSCs, he or she can be assured that in basing a policy on these practices, the NGO’s use of privately contracted security will be consistent with broad international consensus on the limitations and authorizations expected by States for using these services.

 

For several years, the Montreux Documents (also called “The Swiss Initiative”) was left to individual States for review and implementation as the Swiss Government and the ICRC marketed the concept and worked for broader acceptance. Last year, however, saw a marked shift in implementation. In December 2013, the Montreux Document participating States were invited to return to Montreux and report on what they had done to implement the provisions of the Montreux document. Invitees included all represented missions to the United Nations in Geneva as well as notable human rights organizations and academic institutions. One outcome of this meeting was the agreement to form a standing forum for Montreux Document participants. The purpose of this forum would be to enable participating States and organizations to work with one another on PSC related issues outside of the formal structure of the UN or other international bodies. This would include sharing best practices, legislative issues, and concerns about PSC operations. Earlier this month, the first meeting of the Montreux Document Forum (MDF) was held in the Palais de Nations of the UN Compound in Geneva. This was not a formal ceremony, but a working session that set straight away to handle implementing the ideas of the Montreux Document in the present global security environment. Among the topics addressed was outreach to other entities, including NGOs who either contract PSCs or who must share their operational space with PSCs. In particular it was mentions that the MDF should reach out to UN OCHA to review the Brahmini Report on Military Support to Humanitarian Assistance, to update its principles and include the proper role of PSCs.

 

There are other initiatives regarding PSCs that are also very important to NGO security managers. These include developments in the International Code of Conduct for Private Security Service Providers and the American National Standard and ISO standards on PSC operations. All of these, however, derive from the Montreux Document and the sovereign interest of States in managing the use of force in the territories they control. The Montreux Document should be the starting point for considering NGO policies for PSCs. The other initiatives must accept the role Montreux plays in a cooperative approach to State accountability of PSCs and the regulations States will apply. NGO security managers should also take an active interest in the activities of the MDF and how these might affect NGO security in volatile and violent environments.

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