Private security companies: Regulation efforts, professional identities, and effects on humanitarian NGOs

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1 Private security companies: Regulation efforts, professional identities, and effects on humanitarian NGOs Kateri Carmola 7 March 2013 The rise of private military and security companies (PMSCs) in conflict zones and humanitarian spaces worldwide has had profound effects on how humanitarian work is conducted. As providers of the entire spectrum from unarmed security and risk reduction services to different kinds of armed services in conflict zones, it becomes crucial to better understand the opportunities and risks that are connected to the use of such services. Humanitarian NGOs are affected both directly and indirectly by these developments. In order to better understand these effects, I will in this article provide some background information on the growth and composition of PMSCs. I will also be presenting the main tools available to regulate these companies and the importance of current efforts to build new professional identities among PMSCs. Terminology for a diverse sector First, some clarification of the terms used is needed. Many, including a recent UN Working Group, have used the loaded term mercenaries to refer to those who are specifically contracted to provide armed services in conflict zones. 1 A less incendiary term that better captures the reality of the current industry is private military and security companies or PMSCs when they contract with militaries and governments, and private security companies or PSCs when they contract with the private or nongovernmental sector. But since many companies do both, I prefer the longer acronym and will be using it here. PMSCs are as multifaceted as the world of NGOs. Some companies offer multiple risk reduction services, of which armed security is only one small part. Some large companies subcontract smaller local companies, making the organizational hierarchy unclear. PMSCs provide both armed and unarmed security, and are often at work in the background assessing and monitoring risk. While they are usually staffed by former military and police officers, often from places like the US, the UK, South Africa, Nepal, and Colombia, they can often also subcontract local host nation staff for some positions. PMSCs have lately been attracting a lot of attention and hype, but in the last ten years they have become a recognized part of the landscape. Later in this essay I will talk about some of the reasons for their growth. The relevance for humanitarian actors The issue of private security is relevant for humanitarian actors in two ways. First, NGOs and PMSCs often interact or are deployed together in the same situations of complex emergencies. Their actions and interactions have the potential to legitimate or undermine each other, but NGOs can often serve as credible watchdog organizations on the ground. Second, NGOs are increasingly using private security companies to provide training, evacuation services, and convoy or site security. More and more, they are clients of the industry in order to deal

2 with heightened insecurity and new organizational concerns for liability and duty of care. The problem emerges when the efforts taken to responsibly protect humanitarian staff end up contributing to local suspicions that NGOs are merely an extension of governmental or military efforts. Especially when armed guards are used, humanitarian actors can seem more like an extension of the military or state department, and in places like Afghanistan, NGOs often assist even informally or unwittingly in the provision of services that benefit military efforts. Although most NGOs work hard to be perceived as neutral, impartial, and independent, their use of certain kinds of security can undermine these efforts, even as it safeguards individuals. Clarifying the legal status of PMSCs: The Montreux Document The legal status of private military and security contractors under International Humanitarian Law (IHL) and national law is now much more clear than it used to be in the early days of the latest wars in Afghanistan and Iraq at least on paper. The initial sense that private military and security contractors acted in gray areas of the law, or outside recognized rules, led them to often being characterized as mercenaries exploiting conflict for profit. High profile cases of crimes or abuse, which at the same time led to few prosecutions, have added to this picture. Nevertheless, in the last five years, two very important international efforts have tried to close the perceived gaps in law and practice. Humanitarian staff need to know about these two initiatives since they clarify the legal status of companies and the obligations of clients, states, and citizens affected by the actions of PMSCs. The first diplomatic effort was sponsored by the International Committee of the Red Cross (ICRC) and the Swiss government, resulting in the 2008 publication of 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.2 The Montreux Document does not create law it is intended to serve as a reminder of existing obligations under international humanitarian and human rights law. Although it is intended mainly for states (as the signatories of international treaties), the preamble refers to wider goals: While this document is addressed to States, the good practices may be of value for other entities such as international organizations, NGOs and companies that contract PMSCs, as well as for PMSCs themselves.3 The document is aimed at three kinds of states: the territorial states where PMSCs operate (for instance, Iraq or Afghanistan); the states that hire PMSCs, called contracting states (for instance the US or UK); and the home states where PMSCs are registered or incorporated, or have their principal place of management. The Montreux Document follows the ICRC s manner of politely but forcefully reminding belligerents of their relevant rights and obligations as international actors who are bound to the treaties they have signed. This process in itself works to reaffirm the existing structure of IHL, and it reminds the participants in a conflict that this law extends downward and outward to those organizations that are, so to speak, housed by states. A code of conduct for PMSCs The second effort has more direct relevance to NGOs. In 2010 the Swiss government also sponsored the drafting of the International Code of Conduct for Private Security Service Providers (ICoC).4 The code was the result of a multi-stakeholder initiative involving representatives from governments, industry, and human rights organizations. Its preamble references both the Montreux Document and the Respect, Protect, and Remedy framework of the UN s Business and Human Rights initiative.5 The code of conduct outlines rules for the use of force and the vetting and training of forces, and it prohibits human rights abuses such as torture, human trafficking, and child labor. It also lays out how these commitments should be incorporated into company management practices. This industry-level

3 initiative is meant to provide a soft law component, in contrast to the focus on promoting hard law in the Montreux Document. Finally, in late February this year the Oversight Mechanism of the aforementioned Code of Conduct was finalized, and it is hoped that it will be formally launched later this year. This new agreement provides ways for companies to be certified and monitored, and, crucially, for violations of the Code to be addressed through a grievance process. The governing board will be composed of representatives of companies, governments, and human rights organizations. This mechanism aims to reduce problems before they occur, as well as provide credible processes for sanctions when necessary. Budgetary matters are still uncertain, but there is at least a foundation for a functioning organization that can contribute to best practices, training, and the evolution of the industry. As with other multi-stakeholder initiatives, however, the problems are how to balance each stakeholder s concerns: internal governance issues might undermine the ability for the mechanism to work properly. Creating a professional identity It remains to be seen how these two initiatives will work to create an organizational culture that supports the principles of humanitarian and human rights law. The history of warfare has shown that conflict zones require a special type of organization in order to enforce behavior. Before there was international humanitarian law there were codes of conduct enforced by a military chain of command, and for modern militaries an entire judicial infrastructure that practically followed operations into the field. The military s unique command and control structure reinforces military law, and military law reinforces international humanitarian law more generally. But without an organization with the unique organizational culture of the military, these laws would be much less effective. In addition to its layers of legal-bureaucratic checks and balances, the military could also be said to use a much older warrior code of honor. PMSCs, by contrast, are businesses, with a non-military character at their core. The Montreux Document, with its language of good practices is similar in character to the rhetoric used to speak to businesses about human rights. However, companies that operate in conflict zones, and that are often providing armed services, are in a setting that historically has demanded a different type of organizational enforcement. The best outcome of the ICoC would be that it contributes to the growth of a professional identity that of the international security contractor that adapts the security provision practices to suit the exigencies of complex emergencies. And here professional associations like PHAP come to mind. PHAP aims to reinforce the professional identity of members of the humanitarian community as a whole, regardless of their specific organizational affiliation. Professional codes of conduct promote, for instance, the protection of human rights not by focusing on the plight of the victim in need of protection, but on the demands of the separate identities of those who choose to call themselves soldiers, lawyers, or doctors. Appealing to professional norms I would argue that the challenge of ensuring humane practices in the midst of a crisis or conflict zone is best met by appealing to such professional, rather than traditional humanitarian, norms. The duty to protect, for example, can be a slogan for states and some organizations. But it would not apply to individuals, unless they are part of a group whose professional identity is linked to the adherence to such norms. In other words, soldiers and firefighters may care about the perspective of the victims on whom they may potentially inflict harm. But they should not have to, as they are asked instead to care for the organizational norms, which provide them with their professional and legal identity. Here I am reminded of the ICRC s campaign to protect victims in the wars in the former Yugoslavia: posters and radio announcements that said: Warriors don t rape women. Warriors don t kill civilians. Warriors don t shoot prisoners. This message was sent to those who were barely able to identify themselves as having the notion of a professional identity of a warrior : militiamen, hoodlums, gangs, and former

4 soldiers. It attempted to create an identity that would have constraints built in as an attribute of the identity, not as a demand for care or humanitarianism. What is needed is a tripartite system. First, at the international level, you need international humanitarian law and human rights law, with states as signatories to treaties and conventions. Then you need industry level codes of conduct for the PMSCs to follow. And finally you need individual security contractors to commit to professional norms, together with a strict licensing regime to enable (and renew) membership in this professional identity, and an internal auditing and oversight infrastructure to enforce it. 6 Monitoring and evaluating the use of PMSCs Looking forward, there are a number of important issues for NGOs. As credible actors on the ground as well as clients of the industry, they will be used as monitors and evaluators of PMSC actions. Reports from the field will be an important source of information in order to prevent frivolous claims. NGOs also tend to know the local settings and populations, and will be crucial sources of on the ground information should a grievance arise. But NGOs will need to understand the rules under which PMSCs should operate, and exercise due diligence when deciding on whether and how to employ the services of PMSCs. For NGOs who need guidance on how to answer the question of when and how, if at all, to use PMSCs, I recommend the organization European Interagency Security Forum (www.eisf.org) and its trainings and publications, especially Engaging Private Security Providers: A Guideline for NGOs.7 This comprehensive guide provides very helpful checklists for evaluating the need for security, vetting various firms, writing the right kinds of contracts, and resolving conflicts if they arise. They are unequivocal about the need for NGOs to make sure any company they use has signed the ICoC. The risks of transferring risk The rise of the private security industry during the last two decades is a complex story that actually shares a lot of elements with the rise of NGOs. Changes in the nature of conflicts, or complex emergencies, are part of the issue. And like humanitarian actors, private security professionals see themselves as itinerant members of a profession that requires an appetite for risk and a commitment to do good : many describe their services as providing a human right, the human right of security and (contained) peace. The rise of these companies also has a lot to do with a changing attitude toward organizational liability (often described in terms of a duty of care ) and changes in the provision of insurance for those working in danger zones. In my book I wrote about this as part of the rise of the risk industry. 8 The problem arises when the recognition of risk, and the steps taken to alleviate it, actually end up undermining the long term goals of development or humanitarian aid. This often comes in the form of what has been called a risk transfer, where to protect one population you transfer risk onto another. For instance, as many have pointed out, the bunkered look of humanitarian aid communities, like those of military installations, separate aid workers from the population, and transfer risk onto the surrounding population. Such communities give the impression that the population is more dangerous and less accepting than it may be, and thus increases the divide between a privileged humanitarian organization class and an exposed, vulnerable population. Similarly, the use of armed guards can protect humanitarian actors but exacerbate precarious security situations, and the use of host nation guards can unwittingly put humanitarian actors into the middle of rivalries or protection rackets. On this front, there has been a lot of worthwhile debate in the aid community about the transformation of the humanitarian profile. And frankly, these changes in risk mentality are not only due to an increase in the actual dangers of the job, but a wider consciousness or risk-averseness in society as a whole. NGOs

5 are only responding to this wider transformation in the idea of risk, even as the operational environment changes around them. One point regarding the perception of risk needs to be highlighted. Risk does change, and is often highly localized, but the perception of risk is driven by central institutional needs that do not take into account these local variations. The use of PMSCs can therefore exacerbate fragile security situations, undermine a commitment to impartiality and neutrality, and distance NGO workers from the populations they are serving. Here the use of the right kinds of security providers might be a solution, especially if these providers work together with the local host nation police forces, or at least maintain a non-hostile relationship with them, whenever possible. Again, the European Interagency Security Forum briefing paper mentioned above, on how NGOs can best make decisions about the use of private security providers, offers very helpful checklists and rubrics to help weigh the risks of various risk-reduction measures. Ideally, host nation police forces would augment security, and provide security also to the population. In reality, they are often more corrupt and untrustworthy, and under less rule of law, than private security providers. But if, for instance, the hired security providers for an NGO compound establishes good working relationships with local police or military forces, such as they may be, this might serve as a type of localized security sector reform that could improve the situation on the ground. Concluding remarks If you are interested in learning more, I urge you to look at a website that has collected all the relevant international and national information, the Private Security Monitor (www.psm.du.edu). It has links to both the Montreux Document and the International Code of Conduct mentioned above. I would also be interested in hearing accounts from the field on all of the above issues - you can either post in the PHAP member forum, or contact me directly at About the author Kateri Carmola is currently a Visiting Research Scholar at Middlebury College. She is the author of Private Security Contractors in the Age of New Wars: Risk, Law, & Ethics (Routledge, 2010) and is currently working on designing training programs for security contractors and other security sector groups. Notes 1 The official name is the UN Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination. It was established in 2005 in the Office of the High Commissioner for Human Rights (OHCHR). 2 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. 3 Ibid. 4 International Code of Conduct for Private Security Service Providers. 5 Read more on UN s initiative the website of the United Nations Global Compact, 6 There are initiatives underway aimed at forcing PMSCs to sign up to the ICoC, for example a proposed bill in Switzerland. 7 Engaging Private Security Providers: A Guideline for NGOs. 8 Private Security Contractors in the Age of New Wars: Risk, Law, & Ethics (Routledge, 2010).

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