Private armies enter judicial cross hairs

Switzerland took its first steps to prohibit security firms based in Switzerland from any direct involvement in hostilities abroad AFP

Private security firms based in Switzerland will in future have to report to the government on their activities abroad. A proposed law that will put these companies on a shorter leash could become a model.

With this framework, Switzerland is playing its part in a “pioneering international effort”, claimed Justice Minister Simonetta Sommaruga, as she presented the government’s bill on “private security services provided abroad”.

Although he has some reservations, Marco Sassoli, professor and head of the department of international public law and international organisation at the University of Geneva, considers the proposed legislation “not perfect, but quite exemplary”.

All the more because regulation of private military and security companies “is one of the major concerns of international humanitarian law today”, he believes.

The increasing involvement of these companies in crisis or conflict zones and the expansion of the range of their services has become apparent in the past 20 years, but the legislative framework has not kept pace.

Although a promoter of international initiatives to regulate these private armies, Switzerland has a legal vacuum in its own jurisdiction.

This gap is to be plugged by the law now proposed by the government, which is intended to safeguard Switzerland’s internal and external security, forward its foreign policy objectives, preserve its neutrality and guarantee respect for international law.

Services for Bern

The draft legislation also lays down a series of rules for private companies hired by the federal government to provide security services.

Responding to a question in February 2012, the government stated that it awards 120 contracts to private security firms annually. This business is worth about CHF25 million ($26.9 million) a year.

What the law will ban

The new law prohibits security firms based in Switzerland from any direct involvement in hostilities abroad on the scale of an armed conflict and from any service that might lead to human rights violations.

The ban includes recruiting, training, providing personnel directly or as an intermediary, and the control (by holding companies) of other companies carrying out such activities.

These provisions are considered insufficient by former parliamentarian and vice-president of the Green Party, Josef Lang, who brought forward a parliamentary motion that led to the bill. Lang wants to see a ban pure and simple on private security companies active in war zones, adding that his party supports his position.

“In today’s wars, in Afghanistan for example, it is impossible to distinguish between direct and indirect involvement,” he said. Furthermore, “it is not possible to verify exactly what these companies are doing on the battlefield.”

Similar objections have been raised by the rightwing Swiss People’s Party. “When Swiss authorities examine a situation and conclude that there is no direct involvement in hostilities, it is only temporary; conflicts can change their nature in a matter of hours,” the party said in a statement.

According to Sassoli, on the other hand, it would be overdoing things to go beyond the notion of “direct involvement” in the terms of the Geneva Conventions and related provisions, to which the legislative draft refers explicitly.

Reaction

The Association of Swiss Security Service Companies is for the moment simply saying it not 100% satisfied, according to Matthias Fluri, of the industry group’s legal department. The association is examining the government bill. Only when they have given it sufficient thought and their executive committee has discussed it will they take an official position.

Among political parties, the  government proposals have the highest approval rating from the centre-right Radicals, Conservative Democrats and Christian Democrats. The centre-left Social Democrats and Greens, as well as the conservative right, find fault with it in various ways.

Declaration in advance

Sassoli is, however, critical of the government decision not to require pre-approval of security services abroad.

The  authorities envisage an obligation for the companies intending to carry out activities subject to the proposed legislation to declare this in advance to the federal authorities charged with oversight and to provide a set of quite specific information. The authorities are to let the company know within 14 days if further study is required.

The government has given as a reason for not requiring approval its wish to avoid heavy bureaucratic and financial burdens, but also the danger that approval might be interpreted as some sort of guarantee from Switzerland.

“To determine whether the things a company wants to do constitutes direct involvement in hostilities requires serious analysis. I wonder therefore why it would be less onerous to do this analysis as part of a system of advance declaration rather than an approval system,” Sassoli said.

The government’s argument has not convinced the centre-left Social Democratic Party, which is calling for “the creation of an effective system of authorisation instead of the fragile system of declaration”.

Facts and figures

In a message to parliament, the Swiss government stated that, on a global scale, private-sector services in the military and security area represent a potential of hundreds of thousands of jobs and that the global market for private security in war zones is estimated at $100 billion (CHF930 million).

For its part, the French foreign ministry quotes estimates of $400 billion in turnover and a million people on staff for the whole of the private military and security business around the world. There are about 6,500 companies active in this lucrative market worldwide.

There are no statistics on private military and security companies in Switzerland. In a 2010 report, the justice ministry indicated that about 20 private security companies based in Switzerland operated or were likely to operate in crisis and conflict zones abroad.

Code of conduct

Sassoli sees one positive development in particular in the proposed bill: the obligation on the actors involved to sign up to the international  code of conduct (ICC) for private security companies, in order to be able to provide services abroad. Signatories to this code undertake to respect human rights and humanitarian law in carrying out their work.

The ICC – the result of an initiative launched by Switzerland together with private security companies – has already met with disapproval from France.

Paris sees it as a loophole for the big private security companies, which can thus make their own rules and “avoid any kind of international convention of the usual type, which would be more binding”, said a report from the Defence Committee of the French National Assembly in 2012.

“Certainly this code is nothing revolutionary, and on some important questions, such as direct involvement in hostilities, it has nothing to say at all,” Sassoli admitted.

“But we have to bear in mind that in recent years states have been reluctant to accept new treaties. So we need new ways to regulate.”

(Tranlsated from Italian by Terence MacNamee)