Human Analytics Makes Recommendations for the U.S. National Action Plan on Responsible Business Conduct
Human Analytics has submitted the following recommendations to the State Department, which is overseeing the process to develop a U.S. National Action Plan (NAP) on responsible business conduct. The recommendations focus to security and human rights, which was a theme of the NAP consultation held in Norman, OK at the University of Oklahoma on April 9. Human Analytics participated in the consultation. The below recommendations, as well as those submitted by other organizations and individuals, can be found at the International Accountability Roundtable’s website dedicated to the NAP process.
Human Analytics Recommendations for the U.S. National Action Plan on Responsible Business Conduct with regard to Private Security
April 22, 2015
Human Analytics welcomed the chance to participate in the recent April 2 National Action Plan (NAP) consultation held at the University of Oklahoma in Norman, OK, which had as one focus security and human rights. Human Analytics is a consultancy specializing in helping public and private organizations, in particular private security providers, address human rights risks associated with operating in complex environments. We would like to offer the following recommendations related to the private security industry for consideration as the U.S. government proceeds with developing its NAP on responsible business conduct.
Require Enhanced Human Rights Due Diligence:
The private security industry frequently operates in high-risk, conflict-affected areas. As Guiding Principle 7 of the United Nations Guiding Principles on Business and Human Rights indicates, the risks of human rights abuses are heightened in such areas, and States must help ensure that business enterprises operating in those contexts are not involved in abuses. As the Commentary to Guiding Principle 7 notes, States “should review whether their policies, legislation, regulations and enforcement measures effectively address this heightened risk, including through provisions for human rights due diligence by business.” Human Analytics recommends that the U.S. government mandate at a minimum for its contracted private security service providers that they undertake an enhanced human rights due diligence process and disclose their findings, to include a company’s human rights due diligence policies and procedures, risks and impacts identified, and measures taken to prevent, mitigate and address them throughout their operations. The U.S. government should also encourage, for example through its participation in the Voluntary Principles on Security and Human Rights, private sector clients of the security industry, such as oil, gas, and mining companies, to undertake and disclose information about their human rights due diligence processes. Legislative precedent for such a requirement already exists, for example the mandatory disclosure of due diligence measures relating to conflict mineral supply chains under Dodd-Frank 1502. Other organizations, such as Amnesty International USA and NomoGaia, have made similar recommendations.
Assist the Private Security Industry with the Development of a Human Rights Risk and Impact Assessment Tool:
Guiding Principle 7 states that States should engage “at the earliest stage possible with business enterprises to help them identify, prevent and mitigate the human rights-related risks of their activities and business relationships” as well as provide “adequate assistance to business enterprises to assess and address the heightened risks of abuses.” One means through which the U.S. government could further efforts of the industry to engage in an effective, enhanced human rights due diligence process is to assist with the development of a security industry specific human rights risk and impact assessment tool. A venue already exists to do this, namely the International Code of Conduct Association (ICoCA). The U.S. is a founding member of the State pillar of the ICoCA. According to the ICoCA Articles of Association, one purpose of the Association is to serve as a central agency for the promotion of industry best practice. The U.S. government should provide funding to the ICoCA to develop a human rights risk and impact assessment tool. Despite promises otherwise, to date the U.S. government, unlike other member States, has not provided monetary or in-kind assistance to the ICoCA.
Ensure Policy Coherence:
Guiding Principle 8 recommends vertical and horizontal policy coherence to “ensure that governmental departments, agencies and other State-based institutions that shape business practices are aware of and observe the State’s human rights obligations when fulfilling their respective mandates.” Furthermore, Guiding Principle 6 states that “States should promote respect for human rights by business enterprises with which they conduct commercial transactions,” for example through procurement policies and practices. With respect to the U.S. government’s role as both a regulator and user of private security services, greater policy coherence entails ensuring that the Department of Defense (DoD) and Department of State (DoS) undertake similarly rigorous measures in procuring, overseeing, and regulating contracted private security providers. In particular, there is inconsistency in the level of commitment to more privatized forms of governance, such as the International Code of Conduct/ICoCA and the ANSI/ASIS PSC.1-2012 Management System for Quality of Private Security Company Operations – Requirements with Guidance (PSC.1). While the DoS has announced that it will require its security providers to be members in good standing of the ICoCA and to certify compliance to PSC.1, the DoD has thus far only required compliance to PSC.1 in the DFARS.
Perhaps more significantly, the U.S. Agency for International Development (USAID) has been largely absent from both initiatives. While USAID does not directly contract for private security services to the same extent, the organizations it partners with do utilize and subcontract with private security providers. USAID should require its implementing partner organizations to place similar requirements on their security providers.
These recommendations are in keeping with those made by Amnesty International USA, namely that “[g]overnment procurement contracts with private companies should include requirements that they carry out human rights due diligence and report on their due diligence policies and practices. They should also include clauses providing for the suspension or termination of contracts based on non-compliance. Companies that are directly or indirectly linked to human rights abuses should become ineligible for public procurement contracts.” The U.S. government has the opportunity to use the power of its purse strings to ensure corporate respect for human rights and greater accountability for companies complicit in the commission of human rights abuses.
Improve Accountability by Closing Gaps in U.S. Laws:
While the recent convictions of four Blackwater security contractors involved in the 2007 shooting deaths of Iraqi citizens in Nisour Square demonstrated that U.S. laws can reach extraterritorially to address human rights abuses committed overseas, news reports indicate that an appeal of the verdicts is likely based on the fact that the Blackwater contractors were operating on behalf of the DoS at the time, and thus did not fall under the jurisdiction of the Military Extraterritorial Jurisdiction Act. The U.S. Congress must pass the Civilian Extraterritorial Jurisdiction Act to close gaps in the law by extending federal criminal jurisdiction over all U.S. government contractors. As the International Corporate Accountability Roundtable elaborates in its “Shadow” U.S. National Baseline Assessment for Pillar 1 of the UN Guiding Principles,
“The Military Extraterritorial Jurisdiction Act of 2000 (MEJA)… includes criminal liability for people who are “employed by or accompanying the armed forces” abroad. However, this includes contractors and sub-contractors hired by the Department of Defense only. The proposed Civilian Extraterritorial Jurisdiction Act of 2011 (CEJA) aimed to address this gap by amending Title 18 of the United States Code to clarify and expand federal criminal jurisdiction over federal contractors and employees who commit certain crimes outside of the United States while employed by or accompanying any agency of the United States other than the Department of Defense (DOD). The CEJA bill was introduced on 3 June 2011, in a previous session of Congress, but was not enacted.”
The private security industry has in the past expressed support for legislative proposals that would close the gaps in MEJA.
We thank the Department of State for coordination of the NAP consultations and hope these recommendations are of use. We look forward to continued engagement throughout the process of developing the NAP.