Private Security Companies need more regulation

The International Code of Conduct for Private Security Service Providers was signed in Geneva in November 2010. A year down the line: will this provide for the much-needed regulation in this industry?

Published on 07 October 2011 in ISS Today

Michon Motzouris, Research Intern, Security Sector Governance Programme ISS Pretoria Office

A variety of incidents involving Private Military and Security Companies (PMSC) – a sector that has gained in importance after the end of the Cold War -  have occurred over the past few years that emphasized the need for better regulatory and accountability mechanisms within this industry. These incidents include, most notably, the Nisour Square shootings in Baghdad in 2007 where Blackwater contractors allegedly shot and killed 17 innocent civilians; as well as the occurrence of a variety of other human rights violations, incidents of sexual assault; and the unnecessary use of force. 

Lately the use of PMSC’s by non-state actors like shipping companies and humanitarian aid organisations has increased the need for further regulation.

Up to now, attempts at self-regulation and at imposing existing industry best practices (the so-called Montreux Document, developed through the Swiss Initiative) were rather ineffective in terms of their implementation, and the need for a legally binding mechanism remained clear.

On November 9, 2010, the International Code of Conduct for Private Security Service Providers (ICoC) was signed by 58 signatories in Geneva, Switzerland. The ICoC was the second regulatory mechanism developed under the auspices of the Swiss Initiative (a joint initiative between the Swiss government and the International Committee of the Red Cross). According to the Code, it “acts as a founding instrument for a broader initiative to create better governance, compliance and accountability”. The ICoC does not dismiss the efforts of the Montreux Document, rather it builds upon the base developed by the Montreux Document in order to develop a more comprehensive regulatory mechanism. While the Montreux Document was primarily aimed at states, the ICoC takes on a multi-stakeholder approach that includes governments, private military and security companies, industry associations, experts and academics and civil society. The ICoC outlines principles for the conduct of PMSC personnel, including rules on the use of force, detainee treatment, prohibition of sexual misconduct, etc. 

The reason the ICoC is different from any other regulatory mechanisms is that it appeals to governments and non-state clients to adhere to the Code whilst drawing up contracts with PMSCs. If a PMSC is a signatory of the Code, and the government or non-state actor whom they are contracting to has also committed to implementing the Code, then it moves from a voluntary regulatory standard, to one that can be upheld in a court of law. The British Government has already expressed its commitment to making adherence to the ICoC a requirement for any of its contracted PMSCs, and the US Government is contemplating a move in the same direction.

As of October 1, 2011, the number of signatories committed to the implementation of the ICoC had grown to 211. While gaining so many signatories to the Code of Conduct is definitely a step in the right direction, the question still remains: how will the Code be implemented in the field; and how can we ensure that the stipulations set out in the Code are being adhered to? While it is stated within the ICoC that the Code is simply the founding instrument, and that standards based on the Code and an independent governance and oversight mechanism will be introduced in due course, the implementation process of these methods is not entirely clear. While companies who have signed the Code have agreed to, in principle, incorporate the Code into company policy, adequate vetting of personnel and subcontractors, sufficient training and management of weapons, and incident reporting; self-regulation has historically proven rather inefficient. Companies choose not to report any Code violations and deal with regulatory issues internally, out of fear of tarnishing their reputation, and possibly loosing valuable contracts. 

Despite all the efforts made by the ICoC, a binding international legal instrument for regulating and monitoring the activities of PMSCs at a national and international level is still necessary. The United Nations Working Group on the use of Mercenaries as a means of Impeding the Exercise of the Right of People to Self-Determination (UN Working Group) is a special mechanism developed by the UN Human Rights Council in 2005 to examine mercenary and mercenary-related activities, including monitoring and studying the activities of PMSCs and their impact on human rights. The UN Working Group has expressed support for the efforts of the Swiss Initiative in the development of the ICoC; however it feels that greater collaboration between the two mechanisms is necessary in order to successfully regulate this industry. The idea behind a possible Draft Convention to regulate the activities of PMSCs and to encourage respect for human rights by PMSCs, being developed by the UN Working Group, is to implement regulatory bodies at a national, continental and international level so as to have constant human right monitoring and accountability systems in place. The ICoC, on the other hand, seems to be attempting to implement a steering committee that will take an international oversight function, encouraging self-regulation at a local level by PMSCs who are signatories to the Code.