Will Code of Conduct Clean Up Security Contracting Field?

10/27/2010

In November, more than 20 private security contractors (PSCs), along with representatives from various governmental and non-governmental organizations (NGOs) from around the world, will come together in Geneva, Switzerland, to sign the International Code of Conduct for Private Security Service Providers. The code aims to "set forth a commonly-agreed set of principles for PSCs and … establish a foundation to translate those principles into related standards as well as governance and oversight mechanisms." Because the code’s "oversight mechanisms" remain undetermined, questions linger about the effectiveness of another self-policing policy for the private security industry.

The code of conduct is a 17-page document crafted, according to the Geneva Centre for the Democratic Control of Armed Forces (DCAF) – a partner in the process – through "an inclusive, transparent multi stakeholder initiative launched in June 2009." The Swiss government, which created the DCAF in 2000 as a think tank on private security matters, along with the governments of the U.K. and the U.S., consulted on the creation of the code as well. "Companies that sign on to the industry-led effort," the Wall Street Journal recently wrote, "will promise to respect human rights, properly screen security personnel and work to reduce civilian harm when working in conflict zones."

Critics of the effort, such as José Luis Gómez del Prado, head of the United Nations (UN) Working Group on the Use of Mercenaries, acknowledge that the code of conduct is a "good document" but claim the self-regulatory approach is just "window dressing" and that a "legally binding instrument" is needed as a real enforcement tool against PSCs. P.W. Singer, a senior fellow and director of the 21st Century Defense Initiative, recently told Government Executive, "It's a lot like the code of conduct at your neighborhood country club, but with even less bite," recognizing that the document lays out "good practices to aspire toward" but lacks "legal or economic" sanctions.

Human rights proponents and other groups have long advocated the need to regulate PSCs better, but the issue has only gained traction over the last few years. In 2005, the UN Commission on Human Rights, the predecessor of the UN Human Rights Council, set up Gómez del Prado's group to study the impact of PSCs throughout the world. The working group arrived at several startling conclusions:

In the cluster of human rights violations allegedly perpetrated by employees of [private military and security companies] which the Working Group has examined one can find summary executions; acts of torture; cases of arbitrary detention; of trafficking of persons; serious health damages caused by their activities; as well as attempts against the right of self-determination. It also appears that [private military and security companies], in their search for profit, neglect security and do not provide their employees with their basic rights, and often put their staff in situations of danger and vulnerability.

The high-profile scandals that have erupted over the last few years in the U.S. wars in Iraq and Afghanistan only reinforce the working group's conclusions. The UN working group, along with the Parliamentary Assembly of the Council of Europe, has called for a legally binding instrument to hold PSCs accountable, which would resemble the "Stop Outsourcing Security Act," introduced earlier in 2010 by Sen. Bernie Sanders (I-VT) and Rep. Jan Schakowsky (D-IL).

Any arrangement to hold PSCs accountable modeled after the "SOS" Act, however, would circumscribe the private security industry's opportunities of employment, limiting them to roles that do not approach the delicate, gray area of tasks only government employees should perform. Not surprisingly, industry officials disagree with this approach and do not acknowledge that the kinds of tasks they perform have anything to do with the pernicious effects they can have on an environment in which they are engaged.

The private security industry insists that a self-policing effort, like the new international code of conduct, will be enough, as it will weed out the bad actors that many within the PSC community blame for their poor reputation. Speaking to Government Executive, Tara Lee, a partner with DLA Piper, a law firm associated with the security contracting community, claims the minimum standards will help because, "Right now, three guys with guns, a truck and a website have a security company." However, most of the major scandals associated with the private security industry were perpetrated by large, professional organizations in good standing with the PSC community, such as Blackwater/Xe, ArmorGroup, and DynCorp.

Some good government advocates optimistically see the new International Code of Conduct for Private Security Service Providers as a first step. Professor Deborah Avant of the University of California, Irvine told the Journal that the code helps establish private security contractors as "a feature of the landscape in conflict zones," which will lead to better oversight. The key, though, will be enforcement of penalties against companies that violate the code and how the group will find violations. The DCAF and other advocates of the code of conduct point out that there will be independent auditing of member companies, but it will still be up to members to self-report serious incidents in the field, and it will be up to the group of organizations signed on to the code to decide consequences for noncompliance.

Contractors have a very poor record when it comes to self-reporting serious incidents that may show incompetence or neglect. At a hearing convened by the Commission on Wartime Contracting (CWC) this summer on the use of private security contractors in Iraq, self-reporting by companies was a main issue. Commission member Charles Tiefer, a law professor at the University of Baltimore, pointed out to several government officials testifying that no less than three different studies conducted by governmental and non-governmental entities found that private security contractors cannot be counted on to reliably report incidents involving grave issues such as civilian causalities and weapons discharges.

The studies included a report by Human Rights First, which reviewed 610 serious incident reports provided by private security contractors used by the U.S. government and found that just one report even suggests unwarranted weapons discharge. The second report, conducted by the inspector general of the U.S. Agency for International Development (USAID), examined 207 incident reports filed between 2006 and 2009 and found that contractors reported no persons other than employees of the company were killed or injured, and no property other than the companies' were destroyed. The report found "that subcontractors can censor or omit incident reports that might reflect on them poorly." The final study, done by the Special Inspector General for Iraq Reconstruction (SIGIR), reviewed 109 incidents that reported, as Professor Tiefer exclaimed, "no Iraqi civilians ... injured, let alone killed." A pattern of underreporting of civilian incidents is clearly reflected in these studies.

Even if private security companies do begin to self-report serious incidents on a consistent basis, there is no guarantee that the organization of members signed on to the proposed code of conduct will penalize them appropriately. Indeed, the private security industry has a self-policing code of conduct similar to the new international one. The International Stability Operations Association (ISOA), formerly known as the International Peace Operations Association, an industry trade group that boasts over fifty member companies, "seeks to ensure the ethical standards of ISOA member companies operating in conflict and post-conflict environments so that they may contribute their valuable services for the benefit of international peace and human security."

Last summer, though, when pictures of employees of ISOA member ArmorGroup surfaced that showed drunken orgy-like parties at a personnel compound near the Kabul embassy in Afghanistan, not one other member of the group stepped forward to complain about the incident. At a CWC hearing held to address the ArmorGroup scandal, Doug Brooks, head of the ISOA, admitted that over the course of 13 days, between the time the pictures and allegations emerged and the time of the hearing, no one – much less a member company – filed any sort of complaint. Brooks even conceded, "[M]ost of the complaints come from outside the association."

If governments are going to hold the private security industry accountable, a binding, international instrument will likely need to be adopted. As Gómez del Prado, the UN working group head, has remarked, "Voluntary codes of conducts for [private military and security companies] may be a useful mechanism. However ... they remain insufficient and should be combined with the elaboration and adoption of legally binding instruments at the national, regional and international level."

Editor's note: This article has been updated since its original posting date.

Image in teaser by flickr user munir, used under a Creative Commons license.