Pragmatic Action Is the Key to Governing Private Security Services

Stories of private security contractors run amok in Iraq, private involvement in coup attempts in Equatorial Guinea, and the seeming inability of individual governments to regulate the global industry led many analysts to see the privatization of military and security services as a run-away problem in the early part of the 21st Century.  Governance of this industry now, however, looks increasingly manageable. In February of this year, stakeholders reached agreement on the charter for a governing body for the International Code of Conduct for private security providers (ICoC) and are now working toward launching the International Code of Conduct Association (ICoCA) in September.  The creation of this body promises to institutionalize an overlapping set of initiatives that, together, represent a significant step toward the effective governance of the global private military and security industry.

The key to the progress thus far has been a willingness on the part of governments, industry, and civil society groups to engage pragmatically with one another.  The “Swiss Initiative”, out of which these agreements grew, was launched in 2006 not to devise new international regulation but to bring the industry and its clients into greater compliance with already existing international humanitarian and human rights law.  This modest goal was instrumental in drawing together those governments and industry uninterested in international regulation.  The overarching purpose – to improve compliance with international humanitarian and human rights law – drew in other governments and civil society groups.

The Swiss Initiative resulted in the Montreux Document (issued in 2008).  It set a broad framework drawn from existing international law obligations within which states could manage their various relationships with private military and security companies (PMSCs).  It also revealed some gaps.  One gap was the obligations of PMSCs themselves.  An immediate follow on process was launched to develop a base line for company behavior all over the world.  The ICoC (issued in 2010) was the result of this process.

Pragmatism on the part of all parties was important for creating relationships between individuals representing powerful states, important members of industry, and civil society groups.  These ongoing relationships were instrumental in tethering the purpose of enhancing compliance with international humanitarian law and human rights with the power, expertise and legitimacy necessary to generate results.  No one group of stakeholders alone could have produced the effectiveness promised by this overlapping set of initiatives.

Though the US was suspicious of international regulation, it has been an important proponent of this code of conduct. Events in Iraq and Afghanistan and consequent pressures from Congress led individuals at the Department of Defense (DoD) and the State Department to see the Swiss Initiative as something they should get behind.  By contributing US muscle to a larger, multi-stakeholder effort, they saw the prospect of encouraging PMSCs, even those working for non US clients, to respect international norms.  The US decision to work closely on what became the ICoC gave the process greater gravitas and promised to put US enforcement power (joined by the UK, Australia and many others) behind the ICoC.

US involvement also drove the development of industry standards based on the ICoC.  When Congress required the DoD to devise standard practices for private security providers, the DoD supported the development of standards that could be adopted internationally (using the American National Standards Institute, ANSI, process).  And they required specific reference the Montreux Document and the ICoC in these standards.  Four PSC standards specifically built around the principles in the Montreux Document and the ICoC have currently been developed and approved.

PMSC industry leaders have been receptive contributors to the ICoC and PSC Standards processes as a means of establishing the legitimacy of their services.  Both individual companies as well as industry groups, including the US based International Stability Operations Association (ISOA) and the British based ADS and their Security in Complex Environments Group (SCEG) (among others) have been willing to sit down with government and civil society members to hammer out a workable code and governing association.  Rather than lobbying against the process (as their brethren who manufacture guns have done), the industry admitted there could be more or less appropriate operations and engaged with the other stakeholders to hammer out the criteria for a legitimate industry.

Representatives from civil society, particularly organizations committed to human rights and rule of law, are crucial to both the legitimacy of these efforts and their ongoing outcomes.  While some civil society groups were criticizing any engagement with the PMSC industry, organizations such as Human Rights First, Human Rights Watch and others took a more measured approach.  Seeing the potential to encourage better behavior among major clients and industry leaders, they opted to engage with industry and governments to push both toward compliance with the obligations they articulated in the Montreux Document and the ICoC.

This process has generated progress.  There is now a benchmark for private security behavior in the ICoC and it is reinforced by the PSC Standards.  The ICoCA, however, will be crucial for institutionalizing the relationship between stakeholders, monitoring implementation of the ICoC, and ensuring that PMSCs that sign on the ICoC actually conduct themselves accordingly.  As the stakeholders begin to form the ICoCA, each group is evaluating the costs and benefits of participation.  Companies must decide whether to undertake obligations, join the ICoCA, and begin paying dues.  Civil society has to evaluate whether their involvement has led to an organization with the muscle necessary to enhance compliance with the ICoC.  And governments must determine how their obligations vis-à-vis the ICoC will interface work with their existing law and procedures.

As each of the stakeholder groups evaluates whether the ICoCA will be worth their involvement, they would be well served by remembering that what drew them into this process was the impossibility of reaching their goals alone.  Though far from perfect in the eyes of any stakeholders, the ICoCA promises to institutionalize the pragmatic engagement responsible for the progress thus far and play an important and positive role in ensuring that the industry respects international norms. Without it, the entire web of governance including the Montreux Document, the ICoC, and the PSC standards will be weaker and the potential for continued progress will be dimmed.

Deborah Avant

Deborah Avant is Sié Chéou-Kang Chair for International Security and Diplomacy at the Josef Korbel School of International Studies, University of Denver. She is the author of ‘The Market for Force’ and ‘Who Governs the Globe?’ 

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