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The Governance of Private Security pp 31–53Cite as

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The Swiss Initiative

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Abstract

This chapter outlines the significance, main features, and actors around the Swiss initiative, which originated in principles of neutral humanitarianism. Regulatory efforts were antagonized and states’ interests eventually shaped the final legal tool, the Montreux Document. In perspective, policymakers tried to deal with the externality of non-state violence, a mix of both demand and supply sides; on the demand side, the abuses in the use of contractors led US policymakers to be involved in the Swiss process from the start, using it to inform their actions and US regulation; on the supply side, neutral states like Switzerland risked being used as a base for activities in foreign conflicts.

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Notes

  1. 1.

    The first one “recall(s) existing legal obligations of states and PMSCs and their personnel,” and the second one “provide(s) states with good practices to promote compliance with international humanitarian law and human rights law during armed conflict (part two).” Montreux Document, preface, para 2.

  2. 2.

    Montreux Document, preface, para. 9.

  3. 3.

    The Montreux Document, UN. doc. A/63/467-S/2008/636, at Preface ¶¶ 5 & 8 (2008), available at http://www.eda.admin.ch/psc

  4. 4.

    One of the first to raise this concern is Singer (2004, p. 521). Representatives of private military companies do not seem concerned that their employees are at any risk of prosecution under the treaty: “Industry analysts have found that the Convention, which lacks any monitoring mechanism, has merely added a number of vague, almost impossible to prove, requirements that all must be met before an individual can be termed a mercenary and few consequences thereafter.”

  5. 5.

    The Montreux Document, Op. Cit.

  6. 6.

    Authorizing non-state violence in the international system served states’ interests but came with unintended consequences for privateering , mercenaries, and mercantile companies. Cf. Thomson, Chap. 3. For a critique of this approach, cf . Percy (2007) where she contends that one of the central problems with Thomson’s neutrality-as-control-mechanism argument is that even in states without neutrality laws, the practice of selling or using mercenaries stopped.

  7. 7.

    Author’s translation. These are deliberative rather than operational meetings that take place every four years.

  8. 8.

    International Review of the Red Cross. Volume 88, Issue 863, Private Military Companies, September 1, 2006. Available at https://www.icrc.org/eng/assets/files/other/icrc-002-0990.pdf. Accessed September 20, 2014.

  9. 9.

    Ibid.

  10. 10.

    Ibid.

  11. 11.

    The status of the personnel of private security and military contractors in armed conflict situations is to be determined by International Humanitarian Law on a case-by-case basis, with particular regard to the nature and circumstances of the functions in which they are involved. However, there is a presumption that personnel of PMSCs are protected as civilians under IHL unless they are incorporated. In Williamson, Jamie A. “Challenges of Twenty-First Century Conflicts: A Look at Direct Participation in Hostilities.” Duke J. Comp. & Int’l L. 20 (2009): 465. One of the criticisms can be found in Watkin, Kenneth. “Opportunity lost: Organized armed groups and the ICRC direct participation in hostilities interpretive guidance.” NYUJ Int’l L. & Pol. 42 (2009): 641. For a response, cf. Melzer, Nils. “Keeping the Balance Between Military Necessity and Humanity: A Response to Four Critiques of the ICRC’s Interpretive Guidance on the Notion of Direct Participation in Hostilities.” NYUJ Int’l L. & Pol. 42 (2009): 831.

  12. 12.

    This presented an opportunity for the AU to simultaneously address the challenges posed by PMSCs in the region (Gumedze 2011).

  13. 13.

    Balmond, L., p. 115, fn 6. The full citation is Sassoli and Bouvier, “Un droit dans la guerre?” CICR, Geneva, 2003. This work does not appear, however, in the bibliography used for the preparation of the first meeting of expert, which has become available at: https://www.eda.admin.ch/content/dam/eda/en/documents/topics/Comprehensive-bibliography-private-military-and-security-companies_en.pdf. Accessed January 18, 2015.

  14. 14.

    The report found only some evidence. In the Basel region, three licensed companies known to be operating in war zones or crisis areas. Another private security company domiciled in canton Ticino made an unsolicited offer for its services to the Federal Department of Foreign Affairs while operating from Ticino without a license, according to the cantonal authorities.

    The company elected domicile in Ticino as a way of gilding its image (Swiss neutrality). Report by the Swiss Federal Council on Private Security and Military Companies, December 2005.

  15. 15.

    Presentation given by Gomez del Prado in Geneva on November 3, 2010, available at: http://truth-out.org/archive/component/k2/item/93553:beyond-wikileaks-the-privatization-of-war. Accessed January 8, 2015. Also in: Gómez del Prado, José L. “A UN Convention to regulate PMSCs?” Criminal Justice Ethics 31, 3 (2012): 262–286.

  16. 16.

    ICoC , § 35 on torture, ICoC , § 42 on discrimination, ICoC , § 39 on human trafficking.

  17. 17.

    Whereas the Montreux Document refers throughout to “Private Military and Security Companies” (PMSCs). The ICoC adopts the term “Private Security Companies” and other “Private Security Service Providers” (collectively, PSCs). It generally aims to avoid association with military activities. As opposed to the Montreux Document, companies that maintain and operate weapons systems, provide prisoner detention services, and train local forces are expressly excluded.

  18. 18.

    The act remains in force, and the US government has recently enforced it in Africa, in the Gambia, in December 2014; cf. US Government (2015).

  19. 19.

    Before the Vienna Congress, since the defeat in the Battle of Marignano in 1515 and in particular since the Thirty Years War in the seventeenth century.

  20. 20.

    Most famously in 1872 in the Alabama case between the United States and Great Britain.

  21. 21.

    Since the Franco-Prussian War, these engagements peaked during World War II when Switzerland held over 200.

  22. 22.

    Note: CPA Order #17 is a legislation signed in 2006 that was intended to provide immunity to contractors.

  23. 23.

    Nigerian federal government issued a code of conduct to its soldiers which required that Biafran prisoners be “treated as prisoners of war.” Instructions were given on the protection of civilians, mosques, churches, foreigners and private property. Foreign mercenaries, however, were “not to be spared.” The Red Cross (ICRC) made fairly regular visits to detainees held by the government (Forsythe 1977). On the famine intervention, cf. Chandler, David G. “The road to military humanitarianism: how the human rights NGOs shaped a new humanitarian agenda.” Human Rights Quarterly 23, 3 (2001): 678–700. After some limited involvement at the beginning of the war, Biafra became the ICRC’s first large-scale relief operation.

  24. 24.

    A shooting incident caused the ICRC to pay closer attention to the Fourth Geneva convention and its Article 23 (…) and that the established government in a civil war had the legal right to set the terms for inspection for relief flights into the secessionist area. For a full account of ICRC work during the Nigerian civil war, cf. Forsythe , pp. 180–196.

  25. 25.

    Forsythe cites three main “blots on the record” of neutrality: conservatism and racism against Ethiopia during the Italian invasion; cooperation with the Nazis that prevented a discreet diplomacy in favor of the Jews during the genocide; and the tilt toward Biafra during Nigerian civil war.

  26. 26.

    For a critique, cf. Franke, Mark FN. “Responsible Politics of the Neutral: Rethinking International Humanitarianism in the Red Cross Movement via the Philosophy of Roland Barthes.” Journal of International Political Theory 6, 2 (2010): 142–160. He writes: “ICRC’s commitment to neutrality leads it to a broad yet significant political partiality and, thus, a highly politicised role in international conflict. (…) The irresponsibility to these terms is rooted well within ICRC’s simultaneous admission to being politically involved and interested in its support for humanity, while assuming that humanity itself can serve as an apolitical guide to such action. It presents an acknowledged political humanitarianism while taking the position that the ground of this work, humanity, is itself neutral.”

  27. 27.

    “The perception of bias made the ICRC’s relationship with most communist countries difficult throughout the Cold War … Is this the same pattern we will see in the War on Terrorism? If this pattern is repeated the ICRC must understand the limits of its neutrality , and further should understand how it is perceived and adapt to these circumstances.” Forsythe . Op. Cit.

  28. 28.

    I refer to the creation of MSF—Doctors Without Borders in 1971. Cf. Vallaeys, Anne. Médecins sans frontières: la biographie. Fayard (2004).

  29. 29.

    For a table of the integration of Switzerland in the UN system, cf. Gabriel and Fischer (2003, pp. 55–56).

  30. 30.

    The current symbol comprises the symbols of the Red Cross, the Red Crescent, and the Red Crystal. The latter was added as an additional symbol with equal status with a third additional protocol to the Geneva Conventions in 2005. The Red Crescent had been formally recognized in 1929.

  31. 31.

    Although they have all been chosen and co-opted by the ICRC . Further, they have not been seconded to Geneva by Bern. They have all given up their position in the Swiss administration, except in one case during the 1940s. Gasser in Gabriel and Fischer, p. 121.

  32. 32.

    For a description of the office of the president and the assembly, cf. Forsythe (2014, Chap. 2).

  33. 33.

    Other studies worried about control over force (Avant 2005; Isenberg 2009).

  34. 34.

    Instead, US preferences for this approach to regulation emerged during these multi-stakeholder processes. Though there was demand for US regulators to “do something” from Congress, new ideas about what the United States might do emerged from its interactions with others (Avant 2015).

  35. 35.

    Katzenstein and Keohane (2007). The authors define anti-Americanism as a psychological tendency to hold negative views of the United States and of American society in general, p. 275. For a review of the main definitions, cf. Chiozza (2010, Chap. 2).

  36. 36.

    Author’s interview, with ICRC official, Geneva, July 2014.

  37. 37.

    The restructuring was highly unlikely since an all-Swiss Assembly contributes to the neutrality of the organization but the proposal was one of many frequent attacks. This paragraph draws from Forsythe (2011: 165–166).

  38. 38.

    They also write: European governments not only declined to block the nomination of Paul Wolfowitz (often referred to as the architect of the Iraq War) but expressed considerable support for him before his official selection, p. 288.

  39. 39.

    Forsythe adds, citing Goldsmith, The Terror Presidency: the weak “enemy” using asymmetric legal weapons was not al Qaeda, but rather our very differently motivated European and South American allies and the human rights industry that supported their universal jurisdiction aspirations. Rumsfeld saw this form of lawfare as a potentially powerful check on American military power.

  40. 40.

    For a review, cf. Scharf, Michael, and Elizabeth Andersen. “Is Lawfare Worth Defining—Report of the Cleveland Experts Meeting—September 11, 2010.” Case W. Res. J. Int’l Law, 43 (2010): 11.

  41. 41.

    Records of the first meeting of experts (January 2006), W. Hays Park, The Perspective of Contracting and “Headquarters” States, available at: https://www.eda.admin.ch/content/dam/eda/en/documents/topics/Presentation-perspective-of-contracting-headquarters-states_en.pdf. Accessed November 20, 2014.

  42. 42.

    One US government participant in the process pronounced the Montreux Document “a significant achievement of historic importance.”

  43. 43.

    An exception of active participation is the International Coalition for the Ban on Landmines. Concern with Anti-Personnel land mines initially grew out of work on humanitarian laws of conflict as carried out chiefly by the ICRC . Price (1998, p. 7).

  44. 44.

    Interviews with ICRC representatives, January 2014, Johannesburg and Geneva.

  45. 45.

    This raised the risk that ICRC —or Switzerland —could be seen as contributing to legitimate PMSCs. The question may be settled only with time as the Montreux Document extends its membership or else remain confined to an almost exclusively Western initiative, as the Voluntary Principles, which indirectly supports a mostly Western industry. The Swiss initiative did not set out to be exclusively Western, nor did it set out to encourage the market for private security but this could be its long-term, unintended result.

  46. 46.

    31st International Conference of the Red Cross and the Red Crescent (Geneva 2011). P. 35 Op. cit.

  47. 47.

    Clara Burton, a helper during the Civil War, and the founder of the US Sanitary Commission and later of the American Red Cross, on how she campaigned for the United States to sign the GC, cf. Jones (2012, Chap. 2). In the face of her first rejection, she introduced disaster relief as a component that could strike a chord in a country that did not face the dangers of perpetual war as European nations did. Robert Lincoln, son of slain president, gave in to Barton tenacious campaigning and the United States eventually signed the GC in 1882 that adhered to a strict interpretation of the Monroe doctrine and recoiled from any “entanglements” with foreign organizations, p. 28.

  48. 48.

    The report found only some evidence. In the Basel region, three licensed companies known to be operating in war zones or crisis areas. Another private security company domiciled in canton Ticino made an unsolicited offer for its services to the Federal Department of Foreign Affairs while operating from Ticino without a license, according to the cantonal authorities. The company elected domicile in Ticino as a way of gilding its image (Swiss neutrality), Swiss Federal Council (2005).

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  1. School of Advanced International Studies, Johns Hopkins University, Washington, DC, USA

    Marco Boggero

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Boggero, M. (2018). The Swiss Initiative. In: The Governance of Private Security . Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-69593-8_2

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