15
JUL
2016

New Tools for States and Companies Assist with Better Governance of the Private Security Industry

V3 Cover pictureIn the last few months, the Geneva Centre for the Democratic Control of Armed Forces (DCAF) has released three new tools to help States better regulate private security companies (PSCs) and PSCs ensure the responsible provision of security services. An international foundation headquartered in Geneva, DCAF has distinguished itself for the leading role it has played in fostering private security governance by providing research and practical tools, promoting the sharing and implementation of regulatory best practices, and supporting the development of international consensus on norms and standards for the industry.

First, in its role as Secretariat for the Montreux Document Forum (MDF), DCAF issued in June a Legislative Guidance Tool for States to Regulate Private Military and Security Companies. The MDF was established to assist States with implementing the legal obligations and Good Practices outlined in 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) by sharing lessons learned and best practices. Currently the MDF has 53 participating States and three international organizations (EU, NATO, OSCE). The Legislative Guidance Tool was presented to the MDF participating States as a resource for implementing their Montreux Document commitments in national laws and regulations. However, whereas the Montreux Document is primarily applicable to States’ governance of private military and security companies (PMSCs) during armed conflict (although with relevance beyond armed conflict), the Legislative Guidance Tool has a wider remit recognizing that the privatization of security services is equally prevalent in the domestic context. Therefore, the Tool has the dual purpose of capturing existing national legislation, policies, and best practices, as well as offering guidance to lawmakers to develop and improve national legislation to bring it in line with international obligations and recognized good practices. It draws on the guidance in the Montreux Document, but also a range of other hard and soft law international frameworks.

As the Legislative Guidance Tool points out, “existing national laws are not always clear on how a State’s international human rights obligations apply to and govern the operations of PMSCs.” The Tool breaks down the national regulatory framework into seven areas that may pose challenges. These revolve around key issues such as including an explicit expectation that companies respect human rights, determining the applicability of legislation in terms of defining the scope of the industry and ensuring adherence extraterritorially, and making determinations about what types of services are permitted and prohibited. Other issues addressed include establishing an authority that is enabled to oversee and control PMSCs’ activities, creating laws to authorize and license companies, and vetting and selection of PMSCs for States that contract with PMSCs. The final two chapters address incorporating provisions into national legislation that address the obligations of PMSCs and their personnel to take steps to avoid committing harmful acts, and that ensure adequate accountability for harms and effective remedies for victims of abuses.

In all, 32 separate challenges are identified and analyzed, and recommendations and examples of good practice are provided to address them. Armed with such detailed guidance on the nature of effective legislation, the MDF could move beyond being primarily a dialogue forum and could push for legislative reform by requiring member States to report annually on their progress in implementing their Montreux Document commitments and assessing those reports against these good practices.

Second, honing in specifically on good practices related to States’ and international organizations’ procurement and contracting of private security services, DCAF also recently released a scoping study entitled, Putting Private Security Regulation Into Practice: Sharing Good Practices on Procurement and Contracting 2015-2016. The study examines how the power of the purse string offers one strategy for ensuring better private security governance. Four key international regulatory initiatives, three directly relevant to private security (the Montreux Document, the International Code of Conduct for Private Security Service Providers, and the draft of a possible convention on PMSCs) and one with broader applicability to all companies (the UN Guiding Principles on Business and Human Rights), have established that States can use their extensive commercial transactions as a means to promote respect for human rights by companies.

The study breaks down the five stages of procurement and provides examples of best practices for each drawing on key contracting States’ (US, Switzerland, and Australia) and international organizations’ (EU, UN, NATO, and OSCE) experiences. The five stages of public procurement are 1. Needs Assessment, Authority, Scope of Application and Principles, 2. Solicitation and Notice, 3. Evaluation of Potential Contractors, 4. Contract, and 5. Monitoring, Enforcement, and Accountability. A notable contribution of the study are the annexes providing concise summaries of the procurement regulations of the EU, UN NATO, and OSCE. What is not addressed in the study is the extent to which these types of procurement best practices are actually being implemented across the broader set of Montreux Document participating States, and whether contracting authorities are adequately trained and resourced to ensure high human rights related standards in contracts and sufficient monitoring and accountability; these latter shortcomings in adherence to the Montreux Document were raised by DCAF in a report last year, Progress and Opportunities: Challenges and Recommendations for Montreux Document Participants.

Finally, DCAF has been equally involved in participating and supporting various multi-stakeholder initiatives, such as the Voluntary Principles on Security and Human Rights, and developing tools and other resources to assist companies operating in high risk environments with meeting their human rights responsibilities. Last month, together with the International Committee of the Red Cross, DCAF released the third version of its online toolkit Assessing Security and Human Rights Challenges in Complex Environments, which is available on the Security and Human Rights Knowledge Hub. Human Analytics has blogged in the past on earlier versions of the Toolkit. Much like other DCAF tools, the Toolkit is structured around challenges, in this case those that companies face when operating in complex environments such as working with host governments, public security forces, and private security provides. The Toolkit identifies “real-life” operational challenges and provides good practices and recommendations to address them, as well as practical tools, such as checklists, case studies, and additional resources, many of which are available on the Knowledge Hub. It is imminently useful and readily accessible, as users can simply click on a particular challenge they face, which will take them to a page with recommendations to address that challenge.

The most recent version of this “living document” contains an updated Chapter 1 Working with host governments, as well as a completely new chapter, Chapter 4 Working with communities, which addresses managing relations with local communities. As the Toolkit rightfully notes, maintaining positive relations with local communities, which is essential to a company’s social license to operate and can bring reputational gains as well as mitigate operational risks, can be difficult to achieve. Companies often face resistance because of long standing grievances related to the operating context which have gone unaddressed such as “employment, land, environment, compensation, resettlement, and negative legacies from previous company projects.” The chapter details a total of 18 challenges related to strategies for stakeholder engagement; the means to share information and effectively consult and elicit consent; internal management challenges related to stakeholder engagement; and the security impacts of operations on local communities and, from the reverse perspective, the community’s impact on company security. The chapter also offers some overarching recommendations that highlight the importance of understanding the local context and adequately assessing related risks, which includes understanding the stakeholder landscape. Local stakeholders’ comfort with participation increases with engagement processes that are inclusive, transparent, responsive to local communities needs and interests, respectful of local culture, and involve communities in identifying problems and creating solutions. Stakeholder engagement is an ongoing process relevant throughout the lifecycle of an activity and can involve a significant amount of resources and time. However, not doing it well can be just as costly, if not more.

The release of DCAF’s new tools provide evidence that the security industry and its stakeholders have largely found consensus on the normative expectations for the responsible provision of security services, both in terms of State obligations as regulators and clients of the industry and corporate responsibilities to respect human rights. But even more so, they demonstrate that we are moving beyond a phase of expectation setting into a new phase of practical implementation. These tools from DCAF can aid both States and PSCs in this new phase, if they are applied. It is the collective responsibility of the industry, governments, civil society, and other stakeholders to make sure this happens.

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