From Sandline to Saracen: Time to hold the private security industry to its human rights commitments
by James Cockayne, Author and Lawyer
Over a decade after the sanctions busting scandals around the British private military company Sandline, some might argue little has changed.
In July 2012 a UN Monitoring Group alleged that another private military and security company (‘PMSC’) registered in British territory – Saracen International, closely linked to Sterling Corporate Services – may have spent much of the last two years involved in activities that breach UN sanctions in Somalia, with several Somalis apparently ending up dead in the process.
Saracen is a signatory to the International Code of Conduct for Private Security Providers (ICoC), a multi-stakeholder framework being developed by industry, civil society and governments, including the UK government. 464 companies have signed this Code, 163 of them from the UK. By signing the Code, Saracen International endorsed the UN Protect, Respect and Remedy Framework on business and human rights (from which are derived the UN Guiding Principles on Business and Human Rights). It also committed to a range of human rights safeguards, including monitoring and third party grievance procedures offered through an independent, multi-stakeholder international oversight mechanism attached to the ICoC, which is currently being negotiated.
At the time of writing, there is no information to indicate that any of the states in which Saracen and its partners have operated has brought any accountability action. Saracen International remains a signatory to the International Code of Conduct.
Building an oversight mechanism: rising stakes
A multi-stakeholder (industry, government, civil society) steering committee has worked for eighteen months to stand up the oversight mechanism attached to the ICoC. (Disclosure: I was recently invited to join this committee as an ‘auxiliary’ member.) A draft Charter for the mechanism released in January 2012 elicited constructive but robust criticism, and is now being revised. A second version is expected in late 2012.
Unsurprisingly, human rights monitoring and third-party grievances remain the most contentious issues. Civil society actors in the steering committee have made clear that these are ‘red lines’ for their ongoing support for the process, but some industry representatives remain cautious about the implications of robust accountability mechanisms that provide ‘effective remedies’ for human rights abuses by the industry. Still, that is precisely what companies commit to in signing the Code.
These negotiations have been given added urgency by the industry’s own efforts to drive up professional standards – through a parallel process of market-driven certification. Working outside the Swiss-facilitated ICoC process, the US Department of Defense has backed efforts to create an American national standard for management and operations against which PMSCs will soon be able to be certified. On a positive note, this standard breaks new ground in providing for human rights due diligence and impact assessments, company-level complaints procedures, and requiring compliance with the International Code of Conduct. Certification teams will include significant human rights expertise – though paid for by the PMSC being certified.
But certification against the standard does not require an independent review of the company’s human rights performance, nor its compliance with the International Code of Conduct, as things stand. Nor will certification against the standard create grievance mechanisms independent of the PMSCs whose conduct is in question. Moreover, the risk management practices embedded in the industry standard appear to focus more on risk to the company and its stakeholders, rather than risk to rights-holders – a central aspect of the corporate responsibility to respect, as outlined in the UN Guiding Principles. Nevertheless, from all accounts, this American industry standard seems likely quickly to become the international benchmark. The UK government has all but indicated that it will adopt it wholesale as a British standard in the next few months. Other states, from the Czech Republic to the UAE, are poised to follow suit.
The spread of a harmonized standard potentially represents a significant professionalization of the industry, which may in time improve its human rights performance. But it also represents a risk of industry capture of the regulatory regime. With the multi-stakeholder oversight mechanism that the Code promises still not yet established, there is a danger that certification against the new industry ‘standard’ will offer the industry increased legitimacy without increased accountability. Victims of PMSC human rights abuse will be forced to rely on complaints mechanisms provided by the very company they believe has violated their rights, or to look to international mechanisms (courts, the UN Working Group on Mercenaries, or OECD National Contact Points) that have, to date, proven inadequate to provide effective remedy.
Opportunities for the UK government and civil society
As home to the world’s second largest PMSC industry, the UK government has a number of opportunities to provide leadership in this field.
First, it could work with the British PMSC industry to remedy the human rights defects in the American standard before adopting it as a British standard. To start, commissioning a gap analysis of the American standard would help identify where it falls short of the UN Guiding Principles. It would also help clarify what the value-added of ‘ICoC certification’ will be for industry, beyond certification against the industry standard.
Second, the UK government should address PMSC regulation in its current process to develop a whole-of-government strategy for implementing the UN Guiding Principles on Business and Human Rights. The ICoC may offer a neat way for the government to discharge its Duty to Protect human rights, and the best way to provide effective remedies – but only if the oversight mechanism meets the standards set in the UN Guiding Principles. An ICoC grievance mechanism that does not measure up to the effectiveness criteria set out in Guiding Principle 31 will not help the UK government make the case that it can safely rely on the ICoC process to provide victims effective remedies for PMSC human rights abuses. The ongoing whole-of-government review should affirm a commitment to ensuring that the ICoC mechanism faithfully implements the UN Guiding Principles.
Third, as the Saracen case shows, there may be protective and remedial actions needed even before the ICoC oversight mechanism is set up. The Guiding Principles offer a range of options to explore. Most obviously, the government should consider whether legal or non-judicial accountability actions (e.g. through the UK’s OECD National Contact Point) ought be brought against Saracen International (BVI) or anyone else for the conduct alleged by the UN Monitoring Group. Broader protective steps might also be warranted as part of the government’s ‘smart mix’ approach. This could include helping other PMSCs operating in conflict zones discharge their human rights due diligence by providing real-time information about heightened human rights risks, and long-term guidance on developing effective due diligence and monitoring systems.
Fourth, both government and civil society have a new opportunity to push this agenda forward through the UN Human Rights Council. The United Nations has long been constrained in its ability to tackle this issue as the result of disagreement between western and non-aligned states over how to talk about PMSCs. Yet significant progress appears to have been achieved at an August 2012 meeting in Geneva. (Disclosure: I was an invited speaker.) The meeting achieved a consensus to support two more years’ discussion of options for an international regulatory framework, including the possibility of an international treaty, examination of national regulation and obstacles to effective accountability. The UK government and civil society should use these discussions to promote application of the UN Guiding Principles to the regulation of this industry, and to encourage more effective accountability arrangements.
Without such steps, we can only expect more scandals like those of Sandline and Saracen.