Security for Sale

The last 30 years have witnessed a paradigm shift in the provision of security from public to private actors amounting to between US$20-100 billion spent annually on their services. This phenomenon has been driven largely by two trends: the shift of functions traditionally carried out by public actors to the private sector, with the United States taking the lead in the 1980s, and the end of the Cold War, which led to the downsizing of state security forces. However, this shift has not been accompanied by a sufficiently adapted accountability framework to effectively regulate PMSCs, leaving many questions as to how and to what extent such regulations should and do apply. In the meantime, problems of democratic accountability, impunity and the rule of law continue.

The mass privatization of security poses several important challenges. First, there are no uniform standards on the types of services PMSCs should and should not provide, the training and vetting standards their personnel should meet, or how and what kinds of accountability mechanisms should be in place in the event that personnel are alleged to have committed violations.

Second, in contrast to state security providers, PMSCs are not typically directly accountable to public oversight, but instead mostly answer to a mix of management, company boards and shareholders, whose profit-making goals may come into conflict with the goals of securing and protecting human rights. Also, public representatives may feel less accountable to their own constituents when using PMSCs instead of public security, relying on a public perception that private security providers “matter less” than public security forces. Additionally, state responsibility for the actions of PMSCs is also often lacking or unclear, even in the case where states have hired PMSCs to perform services for them. Furthermore, personal accountability for violations by PMSC personnel is often de facto lacking. Last but not least, specialized oversight bodies for the military such as inspector-generals and commissioners dealing with the armed forces are often not entitled to deal with complaints coming from or related to PMSCs.

Adding to the confusion is the problem posed by the presence of multiple nationalities in PMSCs, which occurs in the not uncommon scenario of a contractor of one nationality hired by an entity of another nationality to work on the territory of a third nationality, employing personnel of additional nationalities. This leads to the potential extraterritorial application of numerous concurrent and/or conflicting laws and standards to any given operating PMSC group, usually resulting in none of the laws or standards being applied.

Related to the problem of multiple nationalities are the practical difficulties in conducting investigations of alleged violations abroad. As nationality is no longer a defining criterion for choosing security actors in the private sphere, countries which otherwise have no connection to an area of operations than the presence of their nationals working for a PMSC are often not able to conduct investigations of alleged violations of their laws.

Indeed, many states still interpret their obligation to protect against human rights violations by civilians as stopping at their borders, adopting the presumption that they are not automatically obligated to protect against violations committed by their civilian nationals abroad, with the duty instead running to the state on whose territory they are operating. However, in the not uncommon situation where the territorial state has failed or is failing and is unable to hold human rights violators accountable, this helps to foster a climate of impunity where such violations are more likely to occur.

Seeking to address gaps in international humanitarian law as it applies to PMSCs, the Swiss government in cooperation with the International Committee of the Red Cross (ICRC) recently engaged in a two-and-a-half year intergovernmental dialogue on how to “ensure and promote respect for international humanitarian and human rights law” by states and PMSCs operating in areas of armed conflict. While not an international convention, strictly speaking, this initiative has sought to improve international regulation of PMSCs.

This Swiss Initiative has brought together representatives from governments, human rights NGOs and the PMSC industry to achieve consensus on how to best improve regulation. These discussions have resulted in the “external pageMontreux Documentcall_made,” a text that reaffirms international legal obligations as they would apply to PMSCs and offers Good Practices for states to aid them in fulfilling these obligations. As of 6 May 2009, the Montreux Document has been endorsed by 28 states. In another show of support, representatives of the PMSC industry not only widely supported the Montreux Document but have called for more enforceable regulation.

In response to these calls, under a mandate of the Swiss Government, the Geneva Centre for the Democratic Control of Armed Forces (DCAF) is currently supporting a business-led process to develop standards for PMSCs based on human rights and IHL, which are enforced through effective accountability mechanisms. The elaboration of a Code of Conduct is intended to address the shortcomings of previous, mostly ad hoc attempts of the PMSC industry to apply self-regulation to its members. These uncoordinated efforts have been largely viewed as ineffective - and even have aroused suspicion - given the absence of clear international consensus on legal and normative standards applicable to PMSCs, as well as the lack of effective enforcement mechanisms.

International organizations have been looking at more conventional approaches, with both the Human Rights Council and the Council of Europe adopting resolutions that support the elaboration of international conventions on PMSCs.

At the national level, two states with strong links to PMSCs - the UK and the US - have both taken steps to evaluate the roles and regulation of these companies. While much has been said in the US about the current lack of regulation applicable to PMSCs hired by the US, a more accurate complaint would be of the difficulty in enforcing a complex and copious agglomeration of US legislation potentially applicable to PMSCs. Two of the reasons for this enforcement difficulty have been a lack of clarity about the practical application of existing law and a lack of effective oversight procedures to properly investigate and prosecute alleged violations committed abroad. Recently, there have been some attempts to hold PMSCs accountable in US courts for both human rights and criminal violations, with one contractor having been found guilty of a crime under the Uniform Code of Military Justice. Several other cases are currently pending, and therefore it is not clear what the outcome of such cases will be.

In the UK, a recent proposed policy statement outlines a two-fold approach. On the national front, this paper contemplates a PMSC self-regulatory system, administered by a PMSC trade association and overseen by the government. On the international level, it contemplates that internationally agreed standards should be developed that are supported by an “effective complaints mechanism” monitored by an “international secretariat.”

Effective approaches to regulating PMSCs will likely require a multi-tier approach, combining regulatory efforts on the levels of international/regional, national and self-regulation, as well as capacity-building.

Regulation at the international or regional level could include the current work of the UN toward an International PMSC Convention, as well as international standard-setting initiatives, such as those led by the Swiss in the Montreux Document and the International PMSC CoC.

At the national level, the US Congress has taken steps to bring Department of Defense contractors abroad under the military legal framework and has introduced several innovative bills to improve accountability on both national and international bases.

Self-regulation efforts led by the industry, such as those currently underway to develop an International PMSC Code of Conduct, have the promise to both be well-adapted to the services provided by PMSCs, as well as to provide accountability mechanisms on the international level.

In addition, capacity building initiatives - such as providing training to PMSCs and their clients on the Good Practices contained in the Montreux Document - can help the recommendations make the leap from conception to implementation on the ground.

Finally, it is also recommended that a thorough international study be conducted on the reasons clients use PMSCs, as well as the unintended consequences of their use.