Chaos, Complexity, and PSCs
A guest post by Christopher T. Mayer
Director, Contingency Contractor Standards and Compliance
Office of the Deputy Assistant Secretary of Defense (Program Support)
This month will see four important events in realizing the goal of effective and responsible provision of private security services. The first of these, coming on December 4th, is the first Annual General Assembly meeting of the International Code of Conduct Association. A few days after that, the International Organization for Standardization (ISO) will release the Draft International Standard (DIS) for the management of private security services. This is the ISO, or international version of the American National Standard (ANSI) that has been in effect since 2012. At about this same time, the new Defense Federal Acquisition Regulation Supplement will be published which requires compliance with the ANSI PSC standard in all DoD contracts for contingency and peace operations. This will make the existing requirement in contracting officer instructions much more effective. Finally, there is the first meeting of the Forum for Montreux Document Participants. None of these are without problems (and I think it would have been much better for them to happen in reverse order) but individually and collectively they indicate how much work has been done in improving the quality and accountability of the PSC industry. They also point the way forward for continual improvement and inspire confidence in seeing that improvement continue.
The different initiatives involving PSCs may give the impression of complete chaos; a Gordian knot of regulations, associations, treaties, agreements, and standards that appear as a tangled and unintelligible web of competing efforts. From an insider’s perspective, I assure you that it often feels that way, too. Chaos theory proposes that what seems to be chaotic is often just very complex. This is true for the operations of PSCs, too. Some sense of order can be derived from this complex and apparently chaotic situation when you think of three complementary tracks (in military terms, that would be called “lines of operation”): international agreements; national regulation; and private sector initiatives.
International agreements consist of formal international law, such as International Human Rights Law, the Law of Armed Conflict, customary international law, and non-binding agreements such as the Montreux Document. This is the domain of the sovereign interests of States. Such international agreements, however, are informed by their citizens and the private sectors affected by those sovereign interests. The formation of the Montreux Document Forum is a major step in States working together to implement the Montreux Document, keep it relevant in a changing global environment, and working with the other lines of operation. The first major tasks which will be taken up by the new forum will be liaison with the ICoC Association — ensuring that the Association remains cognizant of State interests, regulation, and concerns — and expanding the scope of the Montreux Document’s good practices to the maritime domain, with particular concern for State use of private sector security in response to piracy and armed robbery at sea.
National regulation implements the international agreements described above in a manner appropriate to the specific circumstances of individual States as well as their own national policy objectives. For the United States, this includes a range of regulatory initiatives including, but not limited to, the Military Extraterritorial Jurisdiction Act (and expanding that to cover all civilians operating in contingency areas), relevant sections of the Code of Federal Regulations, Agency directives, and military orders. The Federal Acquisition Regulations (FAR) and the Defense Federal Acquisition Regulations Supplement (DFARS) form part of this regulation. The current ANSI standard for PSCs has been required as an instruction to contracting officers since May, 2012. It was intended to incorporate the ANSI standard into the DFARS after publication of a new FAR for PSCs affecting all government agencies. That FAR was published in July 2013 and work began on the new DFARS clause immediately thereafter. That it is only now being published demonstrates how hard it is to change the DFARS. It would still not be ready except that no objections were raised during public comment period.
Private sector initiatives include codes of conduct, generally accepted industry practices, and other self-regulatory efforts. They can be national or have an international but non-governmental character. To be legitimate, they must be consistent with (that is, do not violate or contradict) international agreements and State regulation. The ICoC and its Association are examples of this, as is the Voluntary Principles for Security and Human Rights. Industry associations are critical to promoting common industry practices that raise the performance bar across the sector. Examples include the British based Security in Complex Environments Group (SCEG) and the U.S. based International Stability Operations Association (ISOA) (Both organizations have international membership.) The ICoC and its Association have been called “multi-stakeholder initiatives” as governments and non-governmental organizations participate. This cross sector participation exists, but it does not alter the essentially private sector nature of these initiatives. The ICoCA was formally established a year ago. It is still in the process of standing up. It has not yet come to grips with its position vis a vis the other tracks of PSC regulation. The Annual General Assembly is an opportunity for the Association to report to its members and receive feedback from those members to chart out a way forward, working with the other tracks to promote the responsible provision of security services across the globe.
Standards are cross cutting. They include all three elements. Although private sector in nature, they include State oversight and can be included in State regulation. The ANSI standards development process requires a balance of interests in the drafting committee. This balance mandates a rough equality among the participants from the affected industry, purchasers of the goods or service, and other interested parties or stakeholders. Development of the ANSI PSC standard included more than 200 committee members from 24 different countries drawn from PSCs, purchasers of PSC services, human rights organizations, academia, governments, and standards development experts. The publication of a standard by ANSI or ISO represents a consensus of the different stakeholder groups that the practices described in the standard will produce predictable and repeatable results. For PSCs this means protection of its clients in a way that is consistent with international agreements, State regulation, and industry best practices. Adherence to standards can be subject to contract law. Operations that ignore standards or willfully violate them can be considered negligence in tort law. False representation that a company is in compliance with such standards when it is not can be subject to criminal law. The ISO version of the PSC standard will enable adoption of the practices and procedures described in the ANSI PSC standards in many more States than is possible under any national standard. In this way, it will support international agreements as well as the State regulation referenced in the standard.
Progress in PSC regulation seems complex because it is. It is a necessary complexity reflecting the nature of the contracted service. As the definitions in the ICoC and the ANSI PSC standard say, PSCs operate in complex environments. They operate at the nexus of human rights law, the laws and customs of war, and national criminal and corporate law. Addressing this complexity requires interdependent approaches within and among the different tracks or lines of operations. This complexity fosters Clausewitz’s principle of friction. Understanding the role of these lines of operation and ensuring unity of effort among them is necessary to overcome this friction and keep chaos at bay. The events of this month coming together as they are demonstrate commonality of purpose, a commitment to work together, and an indicator that we are moving forward.