Watchdog Body Will Oversee Private Military Contractors

Inter Press Service

Member governments, security companies and civil society organisations have formally created the first international body to be tasked with the monitoring and oversight of private military contractors’ adherence to human rights standards and international law.

Advocates say the move is significant, formalising a sector whose actions – and for whom the potential for judicial repercussions – have often fallen into legal grey areas amidst the complexity of conflict and humanitarian emergency.

Yet critics warn that the voluntary agreement lacks sufficient enforcement mechanisms while potentially legitimising the privatisation of armed conflict, a process that has been on a steep climb over the past two decades.

In late 2011, under the guidance of the Swiss government, founding states, security companies and NGOs formally agreed upon the substance of what is known as the International Code of Conduct for Private Security Service Providers (ICoC). The code offers guidance for security contractors on their responsibilities under international law, on resolving complaints of rights violations and on ongoing monitoring of adherence to the ICoC principles.

Thursday saw the formal creation of the ICoC Association, at a summit in Geneva. The body will now be mandated with overseeing companies’ adherence to the ICoC guidelines.

“There have always been significant regulatory gaps when it comes to the activities of private military contractors,” Gabor Rona, international legal director for Human Rights First, an advocacy group that served as a founding ICoC civil society group, told IPS.

“Sometimes, for instance, they are registered in one country but are recruiting in another country while operating in a third country. So things get lost in the jurisdictional shuffle, particularly if any of their employees commit human rights violations.”

Rona mentions the so-called Nisour Square massacre, when 17 Iraqi civilians were killed in Baghdad in 2007 by military contractors with the U.S. company then known as Blackwater Worldwide (now renamed Academi), allegedly in self-defence. Despite official U.S. findings that those killed were innocent, jurisdictional confusion has dogged the prosecutions, and Rona says there has been “huge uncertainty” over whether the accused will be held accountable.

That case is ongoing. Last week, a judge directed the U.S. government to speed up the proceedings, giving a deadline of Oct. 21 for the U.S. Justice Department to decide on what charges it will file.

Broad buy-in

The use of private security contractors, particularly by the United States and Europe but also by global extractives companies, has increased substantially in recent years.

In 1990, for instance, military personnel outnumbered private contractors by 60 to 1, according to a report released last year by Jordi Palou Loverdos, a Spanish lawyer. By 2003, when the war began in Iraq, that ratio had dropped to 10 to 1, and by the 2010 these figures were essentially equal.

“By 2007, it is estimated that around 190,000 contractors were working in Iraq on U.S.-funded contracts,” the report states. “Furthermore, this shift to the private sector has created a highly prosperous industry, with revenues’ estimations ranging from 20 to 100 billion dollars annually. The rapid growth … clearly reflects the new business face of war.”

As of the beginning of this month, more than 700 security companies headquartered in dozens of countries worldwide have signed on to the ICoC. Primary government support for the process has come from the United States and United Kingdom, as well as Switzerland and Australia.

Corporate interest has also come substantially from these countries. Some 208 British private security companies have signed on to the ICoC, for instance, as have 64 from the United States – the two leading suppliers of private contractors.

“There is broad buy-in – I’ve seen no indication that companies in certain countries are uninterested or boycotting this process,” Human Rights First’s Rona says. “But the true success of this initiative will be when states make participation and compliance a condition for government contracts – hopefully that will be the trend.”

Critically, both the United States and United Kingdom have already taken steps to tie membership in the ICoC Association to lucrative government security contracts.

“Aware of the influence we have and the role we play as a client and regulator in this sector, we have committed to using our contracting processes to support this process,” Betty King, the U.S. ambassador to the U.N. in Geneva, stated Thursday.

“We believe [this initiative] can play an important role in improving the standards for, and conduct of, private security companies [PSCs] operating in complex environments. This is imperative because, while we do our best to ensure responsible conduct by those PSCs which we contract and supervise, misconduct by other PSCs can sour public perceptions and undermine the positive impact of all PSCs.”

Legitimising mercenaries

King noted that the U.S. government sees domestic legislation and regulation as the primary methods of overseeing the private security sector, but also stated that international efforts such as the ICoC play “an important role in raising industry standards”.

Indeed, membership in the ICoC Association remains strictly voluntary, with the potential negative impact on contracts being the only real enforcement mechanism – though many are hoping that will constitute significant motivation. At the same time, a similar draft framework on private military companies’ conduct is currently being negotiated before the U.N. Human Rights Council, and it appears that would be legally binding.

That discrepancy has led some rights groups to warn against the potential impact of the ICoC guidelines.

The ICoC “leaves these firms to police themselves, lacks teeth and fails to tackle the dangerous privatisation of war,” Ruth Tanner, campaigns and policy director for War on Want, a British charity, said Thursday.

“The code is a limited voluntary mechanism, does nothing to change the culture of impunity that [private military and security companies] enjoy, and represents a licence for abuse … The code will be used by companies to legitimise the industry and by government to sidestep proper controls.”

Tanner is calling instead for “national regulation, alongside legally binding international mechanisms” and expresses support for the discussions currently taking place before the U.N. Human Rights Council.

The U.N. intergovernmental working group tasked with dealing with this issue is currently slated to meet for a third time in December. Its mandate was recently extended by two years, through March 2015.

Carey L. Biron is a contributor to Inter Press Service.