Sabelo Gumedze, Senior Researcher, Conflict Management and Peacebuilding
As the number of private military and security companies continues to grow at an alarming rate, the need for a regulatory and control system of their activities, particularly within the African continent, cannot be overemphasised. Despite the fact that the United Nations (UN) Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination (Working Group) initiated a process of elaborating a text of a possible new draft convention for regulating, monitoring and oversight of the private military and security companies, the eventual adoption of such a convention will take some time. The text of the draft convention is now with the Intergovernmental Working Group established by the Human Rights Council, for consideration by the UN member States.
Parallel to the processes undertaken under the auspices of the UN,, an International Code of Conduct for Private Security Service Providers (ICoC) was concluded. This parallel process was facilitated by the Geneva Centre for Democratic control of armed Forces (DCAF) under the mandate of the Swiss Government. The ICoC is an articulation of a set of standards for private security companies to ensure their compliance with international human rights and humanitarian law. Currently, DCAF is facilitating the development of a draft Charter for the Oversight Mechanism of the International Code of Conduct for Private Security Service Providers (Charter), which is now open for stakeholder review and comment until 16th March 2012.
The popularity of the ICoC among private military and security companies operating world over is phenomenal. On 9_November 2010, 58 private security companies from the UK, US, Africa and the Middle-East signed the International Code of Conduct for Private Security Service Providers (ICoC) in Geneva, Switzerland at a ceremony convened by the Swiss Government. To date, there are 307 signatory private security companies to the ICoC from 51 different countries. The ICoC followed the adoption of the Montreux Document on Pertinent International Legal Obligations and Good Practices for States related to Operations of Private Military and Security Companies during Armed Conflict (Montreux Document), which was adopted on 17 September 2008. Although not legally binding, the Montreux Document was the first international document to describe international law as it applies to activities of private military and security companies (PMSCs) whenever these are present in the context of an armed conflict.
The development of the ICoC articulates corporate commitments to complement existing public regulation of PMSCs, and to fill gaps when such regulation fails. It goes beyond the Montreux Document in the sense that it applies to the activities of PMSCs at all times. The ICoC seeks to clarify global standards for the private security industry in an elaborate manner and most importantly it sets out an agenda for the establishment of effective governance and oversight mechanisms to facilitate better accountability to these standards. It also complements the 2002 Voluntary Principles on Security and Human Rights, which provide guidance to extractive companies on maintaining safety and security of their operations within an operating framework that ensures respect for human rights and fundamental freedoms.
Out of the total number of 307 signatory private security companies, 27 of these companies are operating in Africa. Altogether 16 out of the 27 Africa-based signatory companies are based in South Africa. Within the continent, South Africa has arguably the highest number of private security companies and officers. According to the Private Security Authority Annual Report (2010/2011), a total of 1 780 874 security officers and 20 254 security businesses were registered with the Authority. Though confined to South Africa, these staggering figures point to the need for an effective regulatory and control system of an industry, which has become a force to be reckoned with worldwide. In the absence of an international instrument to regulate the activities of private military and security companies, a question could be asked on whether the implementation of the ICoC and the Charter could be the best approach to address the challenges posed by private military and security companies?
While the signature of the ICoC by these companies is the first step in a process towards compliance, the draft Charter seeks to establish an oversight mechanism for its implementation, thus ensuring full compliance. The envisaged Charter mechanisms are aimed at supporting effective oversight of the private security provision, particularly in areas where the rule of law has been substantially undermined and in which the capacity of the state authority is diminished, limited or non-existent. It is without any doubt that both the ICoC and the Charter would be relevant on the African continent, particularly due to the delay by the UN member States in the finalisation, consequent adoption and implementation of a legally binding document.
In its report to the UN General Assembly dated 22 August 2011 (A66/317), the Working Group clarified its position on the ICoC and the Charter, which essentially provide for an international private security industry’s self-regulatory mechanism. It stated that it did not believe that the efforts initiated through the adoption of the ICoC and the Charter are sufficient in ensuring that companies are held accountable for human rights violations or that this initiative would provide victims with an effective remedy. The Working Group views these initiatives as effective tools for complementing a binding international legal instrument, such as the draft convention proposed..