International Code of Conduct for Private Security Providers
Commentary, 24 November 2010
By Nils Rosemann, Human Security and Business Desk, Swiss Federal Department of Foreign Affairs
Last week in Geneva, nearly 50 global private security firms came together to sign an International Code of Conduct (ICoC) with the objective of strengthening respect for human rights and humanitarian law within their operations. In addition to those who participated in the Geneva meeting, more companies have endorsed the Code by letter with the number of signatory companies now at 70.
These companies are a diverse group – ranging from small and medium sized service providers to the largest in the sector. Some specialise in governmental services as well as protection services for extractive industries.
Representatives of NGOs, media and maritime security took part in the event, as did armed security providers for National Parks and endangered species in Africa. In addition to CEOs and senior management representatives, high-ranking officials from endorsing governments, such as the United Kingdom and the United States of America also participated in the signing of the Code.
A number of other interested governments including Afghanistan, Australia, Canada and South Africa together with representatives form civil society, humanitarian organizations and academia also took part. The signatures commit these companies to a set of principles set out in 70 paragraphs guiding employees and managers in their conduct as well as overall company management in ensuring respect for human rights and international law.
Why is this new Code necessary? Indeed, many label private security industries "guns for hire" or "21st century mercenaries", indicating their unlawfulness. The fact that these companies often operate in contexts in which governmental authority is absent or the rule of law is compromised, does not mean that they operate outside of the law, nor does it mean that the provision of security services aims to replace governmental state sovereignty over the use and legitimate exercise of force. There is no one solution that fits all and regulatory efforts range from a restatement of international law such as was achieved by the Montreux Document to a new convention, elements of which have been presented by a UN working group.
Different legal regimes have different means and abilities to ensure that private security providers operate in a manner which is consistent with international human rights standards. But in certain circumstances these traditional regimes fail to provide accountability for human rights abuses. Therefore the ICoC is important: "for by bringing together all of the key stakeholders—states, civil society organizations, relevant experts, clients, and the private security companies themselves — this initiative has the potential to address gaps in oversight and accountability left by traditional regimes" in the words of legal advisor Harald Koh who spoke at the Geneva signing event.
The ICoC is more than just a “gap filler” or a normative reaffirmation by non-state actors. The Code is a practice oriented tool. Not only is the number of signatory companies impressive (three times more members than currently participate in the Voluntary Principles on Security and Human Rights for example) but so too is the substance of the principles the Code affirms. It refers specifically to the UN “Protect, Respect, Remedy” framework on human rights and business developed by SRSG John Ruggie as well as to the Montreux Document on governmental obligations. The Montreux Document clearly links with the “Protect Pillar” of the UN framework. Similarly, the ICoC is addressing the “Respect Pillar” while the commitment of the industry to develop measurable standards, external oversight and an accountability mechanism within the next 18 months reinforces the UN framework’s “Remedy Pillar”.
The commitment goes further. Take for example the Code’s provisions concerning use of force and firearms: Under current international humanitarian law, personnel of private security providers would lose their status as civilians if participating in hostilities in armed international conflicts. When properly incorporated into armed forces they might even enjoy privileges as combatants. Under the ICoC these activities are not legitimate. Furthermore, the use of firearms is restricted to the exceptional use for “self-defence or defence of others against the imminent threat of death or serious injury, or to prevent the perpetration of a particularly serious crime involving grave threat to life.”
Suggesting that these codes of conduct are “soft law” wrongly indicates that they are not binding on those involved and that violations have no consequences. Those who witnessed the negotiations between governments, clients, NGOs and service providers leading up to the ICoC will attest to the fact that discussions had anything but a soft character. Apart from being the basis for the development of an external oversight and accountability mechanism, the ICoC will be stronger than any other existing multistakeholder tool for ensuring corporate responsibilities. The Code is meant to be included in service contracts and the U.S. and U.K. governments will include its provisions in their own security service procurements. Other governments and clients are encouraged to do the same. Once the ICoC is included into a contract, the violation of human rights becomes a reason for contract litigation. Such litigation and the possibility of exclusion from being signatory to the ICoC could go far beyond any consequences of violations of “hard law”. Unfortunately, the breaching of human rights treaty obligations cause few legal and political consequences, which makes the impact of being signatory to the International Code of Conduct all the more important.
The ICoC concludes: “Those establishing this Code recognize that this Code acts as a founding instrument for a broader initiative to create better governance, compliance and accountability. Recognizing that further effort is necessary to implement effectively the principles of this Code, Signatory Companies accordingly commit to work with states, other Signatory Companies, Clients and other relevant stakeholders after initial endorsement of this Code to, within 18 months: to establish objective and measurable standards [..] and to establish external independent mechanisms for effective governance and oversight.”
This timeline for institution building, including development of external oversight and accountability mechanisms, presents an ambitious agenda for the next 18 months. But it is not an impossible agenda to achieve. Commitment and hard work are always necessary to turn an idea into reality.
Note: The views expressed here are written in a personal capacity and do not necessarily reflect those of the Government of Switzerland.