PMSC need tighter watch: ISS

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Private Military and Security Companies (PMSC) – a sector that has gained in importance after the end of the Cold War – needs better regulatory and accountability mechanisms, the Pretoria-based Institute for Security Studies says.

PMSC’s came to prominence during the post-2003 Iraq war and have lately come to the fore in providing anti-piracy security to ships at sea and protecting humanitarian aid organisations ashore.

Research Intern Michon Motzouris notes incidents, including, most notably, the Nisour Square shootings in Baghdad in 2007 where Blackwater contractors (pictured) allegedly shot and killed 17 civilians; as well as the occurrence of a variety of other human rights violations, incidents of sexual assault; and the unnecessary use of force, make stricter oversight mandatory.
“Up to now, attempts at self-regulation and at imposing existing industry best practices (the so-called Montreux Document, developed through a “Swiss Initiative”) were rather ineffective in terms of their implementation, and the need for a legally binding mechanism remained clear.”

On November 9 last year 58 countries signed an International Code of Conduct for Private Security Service Providers (ICoC) in Geneva, Switzerland. “The ICoC was the second regulatory mechanism developed under the auspices of the Swiss Initiative (a joint initiative between the Swiss government and the International Committee of the Red Cross). According to the Code, it ‘acts as a founding instrument for a broader initiative to create better governance, compliance and accountability’.

Motzouris says the ICoC does not dismiss the efforts of the Montreux Document, rather it builds upon the base developed by the Montreux Document in order to develop a more comprehensive regulatory mechanism. While the Montreux Document was primarily aimed at states, the ICoC takes on a multi-stakeholder approach that includes governments, PMSC, industry associations, experts and academics and civil society. The ICoC outlines principles for the conduct of PMSC personnel, including rules on the use of force, detainee treatment, prohibition of sexual misconduct, etcetera.
“The reason the ICoC is different from any other regulatory mechanisms is that it appeals to governments and non-state clients to adhere to the Code whilst drawing up contracts with PMSCs. If a PMSC is a signatory of the Code, and the government or non-state actor whom they are contracting to has also committed to implementing the Code, then it moves from a voluntary regulatory standard, to one that can be upheld in a court of law. The British Government? has already expressed its commitment to making adherence to the ICoC a requirement for any of its contracted PMSCs, and the US Government is contemplating a move in the same direction,” Motzouris added.

As of the 1st of this month the number of signatories committed to the implementation of the ICoC had grown to 211. “While gaining so many signatories to the Code of Conduct is definitely a step in the right direction, the question still remains: how will the Code be implemented in the field; and how can we ensure that the stipulations set out in the Code are being adhered to? While it is stated within the ICoC that the Code is simply the founding instrument, and that standards based on the Code and an independent governance and oversight mechanism will be introduced in due course, the implementation process of these methods is not entirely clear. While companies who have signed the Code have agreed to, in principle, incorporate the Code into company policy, adequate vetting of personnel and subcontractors, sufficient training and management of weapons, and incident reporting; self-regulation has historically proven rather inefficient. Companies choose not to report any Code violations and deal with regulatory issues internally, out of fear of tarnishing their reputation, and possibly loosing valuable contracts.
“Despite all the efforts made by the ICoC, a binding international legal instrument for regulating and monitoring the activities of PMSCs at a national and international level is still necessary. The United Nations Working Group on the use of Mercenaries as a means of Impeding the Exercise of the Right of People to Self-Determination (UN Working Group) is a special mechanism developed by the UN Human Rights Council in 2005 to examine mercenary and mercenary-related activities, including monitoring and studying the activities of PMSCs and their impact on human rights.
“The UN Working Group has expressed support for the efforts of the Swiss Initiative in the development of the ICoC; however it feels that greater collaboration between the two mechanisms is necessary in order to successfully regulate this industry. The idea behind a possible Draft Convention to regulate the activities of PMSCs and to encourage respect for human rights by PMSCs, being developed by the UN Working Group, is to implement regulatory bodies at a national, continental and international level so as to have constant human right monitoring and accountability systems in place. The ICoC, on the other hand, seems to be attempting to implement a steering committee that will take an international oversight function, encouraging self-regulation at a local level by PMSCs who are signatories to the Code.
“Despite whichever implementation and monitoring process is decided upon and adopted, the ICoC needs to collaborate very closely with industry associations, PMSCs, civil society, academics and the UN Working Group in order to develop the most comprehensive and all-encompassing regulatory mechanism possible. It needs to learn from the errors of previous regulatory attempts, and build upon those, as this mechanism has the potential to overcome gaps in monitoring, oversight and accountability which were evident in preceding regulatory mechanisms.”