A recent article in the Fletcher Security Review entitled “Accountability for Armed Contractors” by Dr. Ian Ralby provides an excellent, concise summary of what he terms “accountability initiatives” for private armed contractors. The key declarations, codes, and management standards he highlights include the following:
- 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) and the recently launched accompanying Montreux Document Forum;
- the International Code of Conduct for Private Security Service Providers (ICoC) and its oversight and enforcement mechanism, the International Code of Conduct Association (ICoCA);
- the ANSI/ASIS PSC Series, in particular ANSI/ASIS PSC.1 – 2012: Management System for Quality of Private Security Company Operations (PSC.1) and ANSI/ASIS PSC.2 – 2012: Conformity Assessment and Auditing Management Systems for Quality of Private Security Company Operations (PSC.2), as well as the new ISO Draft International Standard, ISO 18788 Management System for Private Security Operations, which is based on PSC.1; and
- the UN Guiding Principles on Business and Human Rights (UN GPs).
Ralby expresses a number of concerns about the ability of these initiatives to ensure effective governance and accountability. Many of them, he argues, are a legacy of the Iraq and Afghanistan wars and may be ill-suited to addressing future challenges the industry may face as it moves into new areas of work. This is reminiscent of Sara Percy’s argument that efforts to regulate the private security industry have been a matter of “regulating the last war,” rather than dealing with current and emerging trends. Furthermore, even though these initiatives are backward looking, they have gaps and do not address all the issues that have arisen to date, which could result in a loss of confidence. Ralby also notes that there is not a consistent approach across all U.S. government agencies in how security contractors are procured and to which initiatives armed security providers are expected to adhere.
The latter is indicative of what Ralby sees as the larger problem with accountability initiatives to date, namely that “the resulting collection forms a patchwork, rather than a framework for governing the conduct of armed contractors.” However, this concern may be overstated in light of developments in the past year within the landscape of initiatives for armed security services, which have trended away from fragmentation towards signs of convergence. Ralby makes the sensible recommendation that initiatives be revisited in light of the changing nature of industry operations, and one should add evolving normative and practical understandings of appropriate corporate behavior. Yet, this is exactly what is happening and contributing to a more coherent framework. For example, the ICoCA’s proposed additional human rights-related information requirements for certification (beyond what certification to PSC.1 already requires) are grounded in the human rights risk and impact assessment language of the UN GPs – something which cannot be found in the ICoC itself, which was completed in 2010 before the finalization of the UN GPs. While PSC.1 makes reference to the UN GPs, they were released just before completion of the management standard in 2012, and implementation of the UN GPs’ human rights due diligence requirements had not yet been put into practice by companies. With expected release of the ISO 18788 mid-this year, one finds in the draft international standard more thorough due diligence requirements than explicated in either the ICoC or PSC.1, to include human rights risk analysis as part of the risk assessment and management process.
Voluntary and mandatory regulation: Two sides of a coin
The three pillars of the UN GPs – the state responsibility to protect human rights, the corporate responsibility to respect human rights, and the right of victims to access remedy – clarify that mandatory State regulation of companies and voluntary corporate commitments to respect human rights are two sides of a coin rather than a dichotomy. The Montreux Document, which is largely directed at States, and the multi-stakeholder ICoC/ICoCA were conceived from the outset as two interconnected parts of the Swiss initiative – an effort to find international consensus on appropriate regulation of armed security services. This recognition of the interconnected nature of State-based regulation and corporate self-regulation is reflected in recent efforts to further link the Montreux Document and the ICoCA. The Montreux Document Forum was established this past December to support national implementation of the Montreux Document’s legal obligations and good practices, develop implementation tools, and to encourage greater state support of it. The Forum will offer a venue for interstate dialogue on better regulation of armed security providers, and will support the functions of the ICoCA’s Advisory Forum of Montreux Document participants. The Advisory Forum, as foreseen in the ICoCA’s Articles of Association, is to provide advice on national and international policy and regulatory matters to the ICoCA.
The blurring of the line between voluntary and mandatory regulation is further evidenced by the fact that governments, to include the U.S. government’s Departments of Defense and State, have included or are planning to include conformance with accountability initiatives in procurement decisions. Ralby expresses concern that differential requirements – with the DoD procurement regulations referencing PSC.1 and the DoS security contracts, in particular the Worldwide Protective Services contract, likely to require PSC.1 and ICoC conformance – exacerbate fragmentation. However, with the ICoCA soon likely to decide to accept certification to PSC.1, with some additional informational requirements, as the basis for receiving certification to the ICoCA, the “gaps” between the two becomes less of an issue. The DoD continues to be actively involved in the ICoCA as well as funding management standards development. The PSC Series standards were created to operationalize and embed the ICoC’s requirements into a management system process. The DoD and other stakeholders involved in drafting ISO 18788 have further worked to reduce gaps with the ICoC and the UN GPs.
The road to “best value” and respect for human rights
As Ralby rightfully points out, these accountability initiatives when embedded into procurement processes work to the advantage of private security contractors. Government contractors have long asked for contract awards to be made on “best value” rather than “lowest price technically acceptable.” Accountability initiatives can serve as a “best value” differentiator for those willing to respect the human rights and humanitarian law requirements at the heart of these initiatives. From the perspective of affected communities that live in the areas where these companies operate, such initiatives offer an opportunity for greater respect of their human rights and access to remedy for negative impacts associated with security operations.