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Constructive Constraints? Conceptual and Practical Challenges to

Regulating Private Military and Security Companies

Surabhi Ranganathan

I. The rise and rise of PMSCs

‘But the world may not be ready to privatize peace’ said United Nations Secretary General Kofi

Annan, explaining his decision to not employ a private company for peace enforcement in 1994

in Goma.1 However, he acknowledged that with 5000 personnel, General Dallaire could have

saved 500,000 lives. The company he had contemplated hiring, Executive Outcomes, had

recently contained rebellion in Angola,2 and in 1995 it played a key role in Sierra Leone, forcing

the Revolutionary United Force to negotiate with the Kabbah government.3 Around the same

time, another company, Military Professional Resources Inc., was instrumental in reversing

Croatia’s fortunes against Serbia, converting its ‘ragtag militia’ into a professional force.4 And

these were relatively early days in the rise and rise of private military and security companies

(PMSCs).

While States did outsource aspects of military and security operations to private companies

prior to the 1990s, their role has grown exponentially since. Scholars attribute their growing

presence in developing States, particularly African ones, to the conditions created by the post-

Cold war economy, which left African governments reliant on private contractors to maintain

their authority and to plug the lack of public security infrastructure. ‘Liberalization’ also

facilitated their dubious accords with private corporations for activities like natural resource

1 K. Annan, Thirty-Fifth Annual Ditchley Foundation Lecture, June 26, 1998, Press Release SG/SM/6613, http://www.un.org/News/Press/docs/1998/19980626.sgsm6613.html. 2 H. Howe, ‘Private security forces and African stability: the case of Executive Outcomes’, Journal of Modern African Studies 36(1998), 307. 3 D. Francis, ‘Mercenary Intervention in Sierra Leone: Providing National Security or International Exploitation?’, Third World Quarterly 22(1999), 319. 4 Id., 329; D. Avant, The Market for Force (2005), 98.

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extraction.5 For developed States too, the end of the Cold War provided impetus to downsize

militaries and outsource government activities. And when the ‘war on terror’ began,

governments turned to contractors for logistical and other support. Recent estimates of

contracted personnel in Iraq place them either at par with, or in excess of regular military

personnel, to the extent that the forces are sometimes described as ‘the Coalition of the Billing’.6

Moreover, PMSCs are not only hired by States but also the United Nations and humanitarian

agencies.

Today, PMSCs perform a range of functions in conflict zones and elsewhere. Their services

may be strategic: advising and training military forces, planning combat strategy, intelligence-

gathering; proximate to use of force: guarding persons and property in and outside conflict zones,

escorting convoys, interrogation, weapons management, logistics support; and near-pedestrian:

catering on military bases, scanning and frisking at airports, etc. There is often little distinction

to be made between contractors on the basis of their functions— for example, G4S recruits

employees for Iraq on the promise that they can be ‘security officers, drivers, prison custody

officers, events stewards and cash controllers to baggage screeners, technicians and

investigators, no two days are the same’;7 and their vans roll down the streets of both Baghdad

and Cambridge.

Obviously, the private provision of military and security services gives rise to concerns. Even

if we only take into account experiences with PMSCs hired by western governments

(particularly the United States) to serve in conflicts zones (particularly Iraq)—as the most visible

example—these provide good reasons for worry. The most important issue is the lack of

mechanisms for holding contractors to account for grave human rights abuses and other

malpractices; and the reminder that using contractors weakens democratic constraints on a

State’s foreign policy. Another central concern is of the diminishing presence of government—

5 S. Ndlovu-Gatsheni, ‘Weak states and the growth of the private security sector in Africa: Whither the African state?’, in S. Gumedze (ed.), Private Security in Africa: Manifestation, Challenges and Regulation, ISS Monograph Series, No. 139 (November 2007). 6 K. Greenwald, ‘Coalition of the Billing’, The Huffington Post, June 22, 2008. 7 Careers with G4S, http://www.g4siraq.com/en-iq/Content%20Pages/Careers%20with%20G4S/.

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one scholar asks whether outsourcing policing and military functions represents a retreat to the

Nozickean ‘ultraminimal’ State.8

The foregoing anecdotes and observations are the starting point to understand how closely

PMSCs are intertwined with human security in conflict zones. On the one hand are PMSCs’

own claims of being providers and guarantors of human security. On the other hand, their close

proximity to vulnerable populations is often seen as anything but a reason for ‘freedom from

fear’. The possibility of suffering harm extends also to employees, sub-contractors, staff of

international organizations, militaries, and relief workers, whose presence in conflict zones is

connected with, or dependent upon PMSCs. This chapter will offer several examples to

illuminate the impact that PMSCs may have upon various dimensions of human security—

physical, political, economic, systemic, community and environmental.

The concerns that PMSCs give rise to have provided the basis for a rich, wide ranging

academic and policy discourse, that encompasses the law, politics, morality, ethics, economics

and sociology of military and security outsourcing and is directed in the main to better

regulation of this phenomenon. It is characterized by sensitivity, vision, pragmatism and

passion. Yet, it has been constrained by several ‘essentializations’. These include the

characterization of all PMSCs being intrinsically similar to each other and distinct from private

providers of other public services, and excessive reliance on States’ criminal justice systems to

address all problems. The major aim of this chapter is to question these essentializations: first, to

underscore the need for a nuanced view of PMSCs in conflict zones that gives them a place

alongside other non-state actors; second, to emphasize non-state regulation including industry

self-regulation and multi-stakeholder initiatives. Thus, in what follows, I explore the regulatory

discourse on PMSCs in terms of three sets of flawed readings that it must avoid, for these have

only served to polarize stakeholders and obscure the fundamental questions at stake.

II. Neither Dogs of War nor Pussycats of Peace9

The first polarizations emerge when commentators slot PMSCs according to preconceived ideas

about how States should organize security functions. To some, because PMSCs do not conform

8 C. Walker, ‘War for Hire?: Accountability for Private Military Companies’, International Society for the Reform of Criminal Law, 18th International Conference, Montreal, August 2004. 9 Title borrowed from S. Chesterman, ‘Leashing the Dogs of War’, Carnegie Reporter 5(2008), 36.

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to the republican notion of the citizen soldier,10 they are mercenaries and international law is

directed towards their eradication;11 and their hire by States is within a legal vacuum.12 Until

well into the 1990s, this view was shared by the UN Special Rapporteur on Mercenaries. In his

reports to the General Assembly, Enrique Ballestros referred to legal loopholes that allow

‘associations registered as security services companies which offer contracts freely to people

who want to work as mercenaries, without the act of promoting, advertising or signing such a

contract being regarded per se as illegal and subject to prosecution.’13 He described PMSCs as

the ‘biggest and most sophisticated threat to the peace, sovereignty and self-determination…’14

that, despite hire by legitimate governments, essentially constituted a ‘formally tolerated

mercenary intervention.’15 He urged States not to distinguish ‘legal’ and ‘illegal’ mercenary

activities, for it was ‘a dangerous distinction which could affect international relations of peace

and respect among States.’ He recommended that ‘this dangerous line of thinking should be

abandoned and that mercenary activities should be considered as a whole and be condemned,

banned and characterized as illegal.’16

A visit to the United Kingdom in 1999 may have persuaded him that this was not the way to

engage with stakeholders. In meetings with the Foreign Office, NGOs and academics, he

accepted a distinction between ‘private companies of a military nature which participated in

combat and recruited mercenaries to fight, which were unusual, and the more common private

security companies,’ while reiterating that in practice the line between the two was quite thin.17

In particular, PMSCs ‘enter into contracts to recruit, hire and use mercenaries and become

involved in armed conflicts to such an extreme that they supplant the State and its armed

security forces.’ He now recommended that ‘the activities of military and security companies

should be regulated, limiting … to areas that are not inherent to the very existence of States,

10 E. Krahmann, States, Citizens and the Privatization of Security (2010), provides a detailed account of the ideological underpinnings of the discourse on military contracting. 11 E.g. the 1989 Mercenary Convention; 1972 Convention for the Elimination of Mercenaries in Africa. 12 P. Singer, ‘War, Profits and the Vacuum of Law: Private Military Firms and International Law’, Columbia Journal of Transnational Law, 42 (2004), 521. 13 A/49/362 Sept. 6, 1994, para 27; A/50/390 Aug. 29, 1995 para. 22; A/51/392, Sept. 23, 1996, para. 27. 14 A/52/495 Oct. 16, 1997 para. 19(h); A/53/338 4 Sept. 1998 para. 21(i). 15 Report A/52/495 Oct. 16, 1997, para. 58. 16 Report A/51/392, Sept. 23, 1996, para 48, 52. 17 Report A/54/326 Sept. 7, 1999, para. 23-24.

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while not actually prohibiting the existence of such companies’.18 Despite his altered rhetoric,

the conjunction between PMSCs and mercenaries remained, for him, an unavoidable fact.19

The hint of pragmatism evident in his rhetorical turn was followed by the explicitly practical

recommendations of his successor, Shaista Shameen. She suggested that the United Nations

should clarify its own policy on outsourcing military and security services, and choose between

a complete ban, complete permission (so that States no longer maintain standing armies) and a

partial permission. The UN Working Group on Mercenaries (which replaced the Office of

Special Rapporteur in 2005) has taken steps to draft a convention on the regulation of PMSCs.20

Article 9 of this Draft Convention prohibits outsourcing of ‘inherently State functions’, which

include ‘direct participation in hostilities, waging war and/or combat operations, taking

prisoners, law-making, espionage, intelligence, knowledge transfer with military, security and

policing application, use of and other activities related to weapons of mass destruction, police

powers, especially the powers of arrest or detention including the interrogation of detainees,

and other functions that a State Party considers to be inherently State functions.’

This also represents an advance over the other extreme characterization, which reflects

almost too much pragmatism. Here, the sense that ‘the privatization train has not only already

left the station, but has gone far down the track… any return is likely to take a very long time’,21

has preempted questions about the limits of State outsourcing, the sole caveat perhaps being

that PMSCs should not participate in directly ‘tip-of-the-spear’ armed combat. The focus is

elsewhere: on the concerns that PMSCs give rise to, and creative means of expanding State

regulation. This shift of focus is welcomed by many companies, who happily participate in

policy discussions for improved regulation of the industry, for they see this as the route to

expanded contractual opportunities. However, as critical investigations of specific services

reveal, some services are not appropriate for outsourcing—not just because of dismal previous

experience or difficulty of legal oversight, but because they should properly be carried out by

public institutions subject to the political process and not by entities driven by the profit motive.

18 Report A/55/334 Aug 30, 2000, para. 43, 49. 19 The UN Working Group which includes private companies within its formal mandate retains the anachronistic title ‘Working Group on Mercenaries’. This has been a sticking point in PMSCs’ willingness to engage with the working group. Telephone Interview with Doug Brooks, May 27, 2008 (on file). See also S. Percy, ‘International Regulation’, Adelphi Papers, 384(2006), 41, 50. 20 Report of the UN Working Group to the UN Human Rights Council, A/HRC/15/25, 2 July 2010. 21 L. Dickinson, ‘Public Law Values in a Privatized World’, Yale Journal of International Law, 31(2006), 383.

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An edited volume makes this argument with respect to detention, interrogations, intelligence

gathering and peacekeeping.22 In the case of the last, the author, Lehnardt, makes the point

poignantly: ‘what would be left of the international community which outsources the first

promise of the UN Charter to private companies’?23 Above all, what is an inherently

governmental function must be subjected to inclusive debate. Merely that States outsource

certain functions is not enough reason that they should do so.

There is, additionally, a need for discussion of how relationships between governments and

PMSCs differ for different States. At the moment, the focus on outsourcing by the United States

and to a lesser extent other western States obscures the practices of Asian, African and Latin

American States. Attention to these is important, especially as the effort to draft an international

convention is undertaken. Writings by African scholars, particularly in monographs published

by the Institute for Security Studies,24 reveal that the neoliberal assumptions that support

military contracting in western States have produced deleterious effects in African ones. While

western States may have the capacity to maintain stable principal-agent relationships with the

companies they hire, the same is not true in Africa. Many African governments do not exercise a

‘choice’ (to outsource).25 Gumedze notes they are driven by various compulsions, including

other States’ acts of omission—to provide direct security assistance after the end of the Cold

War—and commission, i.e. by tying outsourcing to financial aid.26 Many States also face pressure

to provide personal security to Africa-bound multinationals, diplomats and humanitarian

bodies. Foaleng notes that PMSCs ‘are engaged to protect diplomats and other foreign workers

in some countries as if there were no forces and no need to train and form a national army,

national security service or police forces capable of defending the state and provide protection

22 S. Chesterman and A. Fisher, ‘Conclusion: Private Security, Public Order’, in S. Chesterman and A. Fisher, (eds.), Private Security, Public Order (2009), 222, 225. 23 C. Lehnardt, ‘Peacekeeping’, in S. Chesterman and A. Fisher, (eds.), Private Security, Public Order (2009), 205, 221. 24 S. Gumedze, (ed.), Private Security in Africa: Manifestation, Challenges and Regulation, ISS Monograph Series, No. 139 (November 2007). 25 S. Gumedze, ‘To embrace or not to embrace: Addressing the private security industry phenomenon in Africa’, in S. Gumedze, (ed.), Private Security in Africa: Manifestation, Challenges and Regulation, ISS Monograph Series, No. 139 (November 2007), 1. 26 S. Gumedze, ‘The private security sector in Africa: The 21st century’s major cause for concern?’, ISS Paper, 133 (February 2007).

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and safety for its residents.’ 27 This stunts the development of public security services, and

security is available only to those able to pay for it.

While, on occasion, a State may hire a private company to maintain its entire security

infrastructure, this is hardly a viable alternative in the long term—as the example of Executive

Outcomes (EO) in Sierra Leone demonstrates. EO dominated Sierra Leone’s security

infrastructure during the civil war, to the extent that it reportedly even operated some judicial

tribunals.28 It played a key role in staving off rebels, securing important mining sites, and

enabling the holding of democratic elections. However, it focused primarily on protecting the

mining sites, for which it had received concessions as payment; and this dominated its conflict

strategy. Moreover, Francis notes, it left once the government could no longer pay, and Sierra

Leone’s security ‘collapsed like a pack of cards’, culminating in the overthrow of the

government. Even more perniciously, while in principle EO was Sierra Leone’s agent, the Sierra

Leone government was too dependent on EO in practice to exercise significant constraint. EO

thus ‘virtually held to ransom the entire politico-military and economic system.’29 And, Sierra

Leone is not the exception. Ndlovu-Gatsheni notes that weak governments’ need of PMSCs for

their survival has tempted several to enter into contracts that have proved too costly to their

citizens. For, in payment, they have had to sign over valuable stakes in natural resources or

offer other such benefits: ‘…leaders of weak states, such as Sierra Leone, Democratic Republic of

Congo, and Angola, have willfully transformed their states into [comprador regimes], that do

not care about the welfare of their citizens but serve as agents of foreign interests and foreign

businesses.’30 By hiring PMSCs, these governments also insulated themselves from civil society

agitations for development of public institutions, thus locking in a vicious cycle of weakness.

However, these scholars also caution against collapsing the distinction between PMSCs and

mercenaries. Gumedze states that doing so has only impeded proper discussion of the

27 M. Foaleng, ‘Private military and security companies and the nexus between natural resources and civil wars in Africa’, in S. Gumedze, (ed.), Private Security in Africa: Manifestation, Challenges and Regulation, ISS Monograph Series, No. 139 (November 2007), 39, 50. 28 J. Cockayne, ‘Make or buy? Principal-agent theory and the regulation of private military companies’, S. Chesterman and C. Lenhardt (eds.), From Mercenaries to Markets: The Rise and Regulation of Private Military Companies (2007), 196. 29 D. Francis, ‘Mercenary Intervention in Sierra Leone: Providing National Security or International Exploitation?’, Third World Quarterly 22(1999), 319, 330. 30 S. Ndlovu-Gatsheni, ‘Weak states and the growth of the private security sector in Africa: Whither the African state?’, in S. Gumedze (ed.), Private Security in Africa: Manifestation, Challenges and Regulation, ISS Monograph Series, No. 139 (November 2007).

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privatization of security.31 He claims there is need for a contextualized discussion on the role of

PMSCs in Africa and urges African States ‘to get involved, collectively and individually, in

debates on understanding the industry, its advantages and disadvantages and how to address

all of these effectively in Africa’.32 His is a plea for nuance and inclusive debate; a reminder that

summary generalizations and uninformed policy-making have ill-served his Continent.

III. Similarly different?

Other essentializations directly relate to blueprints for regulating PMSCs. Policy commentary

has focused largely on certain forms of State regulation, as a response to widely perceived

concerns arising from PMSC operations in conflict zones.33 While there is no doubt about the

need for such State regulation, fully contextualizing these concerns indicates need for a multi-

pronged approach that includes mechanisms of sustained engagement alongside traditional

criminal justice sanctions.

Let me begin with a brief account of the range of concerns often cited. These include

contractors’ activities in their theatres of operation, and systemic implications for States’

security institutions. Contractors pose threats to the communities in which they operate: past

incidents include reckless shooting of civilians, detainee abuse, sex trafficking and economic

exploitation.34 They affect the morale of military forces: reports from Iraq include accounts of

31 S. Gumedze, (ed.), Merchants of African conflict: more than just a pound of flesh, ISS Monograph Series, No. 176, January 2011, xii. 32 S. Gumedze, ‘To embrace or not to embrace: Addressing the private security industry phenomenon in Africa’, in S. Gumedze, (ed.), Private Security in Africa: Manifestation, Challenges and Regulation, ISS Monograph Series, No. 139, (November 2007), 1. 33 E.g. L. Prado, Statement on the use of mercenaries as a means of violating human rights and impeding the exercise of the rights of peoples to self-determination, March 2 2007 (speaking for the UN Working Group on Mercenaries); Outline of the Swiss-ICRC Initiative to promote respect for international humanitarian law and human rights law with regard to private military and security companies operating in conflict situations, 2007; Amnesty International, Private Military and Security Contractors: Questions and Answers, 2008, http://www.amnestyusa.org/business/pdf/pmscsqa3-08.pdf; F. Schreier and M. Caparini, ‘Privatising Security: Law, Practice and Governance of Private Military and Security Companies’, Geneva Centre for the Democratic Control of Armed Forces, Occasional Paper №6, 2005; C. Holmqvist, ‘Private Security Companies: The Case for Regulation’, Stockholm International Peace Research Institute, Policy Paper No. 9, January 2005, http://editors.sipri.se/pubs/SIPRI_PolicyPaper9.pdf. See L. Dickinson, Outsourcing war and peace: Preserving public values in a world of privatized foreign affairs (2011), noting that the focus is not only on state regulation, but specific forms of such regulation. 34 G. Fay, Investigation of the Abu Ghraib Detention Facility And 205th Military Intelligence Brigade, 2004, http://www.defenselink.mil/news/Aug2004/d20040825fay.pdf; P. Singer, ‘Private military firms

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contractor-led rowdyism; contractors often being experienced ex-soldiers can upset formal

chains of command if they serve alongside fresh military recruits–-at Abu Ghraib, contractors

were reportedly supervising military personnel;35 and though many PMSCs have excellent

service records, on occasion militaries have been affected by inadequate support.36 Systemic

implications include the impact on the development of States’ public infrastructure; the threat of

drain as higher salaries attract government and military personnel towards contract work; and,

decline in essential in-house skills following outsourcing of functions like weapons-

maintenance.37 PMSCs may also complicate strategic State interests by accepting contracts that

various States may perceive as ‘undesirable’, i.e. those offered by hostile States or groups. We

must not overlook the threats to PMSC personnel: there have been occasional reports of

inadequate training and preparation, lack of briefing about rules of conduct and improper

deployment. This may also have ramifications in terms of escalating conflict: the ‘Battle of

Fallujah’ was triggered by the killing of a Blackwater team by Iraqi insurgents, and lead to

deaths of 36 servicemen, 200 insurgents and 600 civilians. According to a US Congressional

report, this would have been avoided had Blackwater sent a better-prepared team to Fallujah,

an insurgent stronghold.38

This list should give us pause. But, it is not peculiar to PMSCs. Violations of human

rights, inadequate preparation, and improper deployment taint the operational record of many

national militaries and peacekeeping forces. Concerns having to do with the ‘private’ nature of

PMSCs; i.e. of their impact on public infrastructure and States’ strategic interests are true for

other privatizing sectors. Private companies and humanitarian agencies operating in conflict

zones have been known to succumb to temptations flowing from their relative power over

vulnerable populations and weak governmental entities. And indeed, while these entities,

militaries, PMSCs and other private companies, humanitarian agencies, are subject to varied

in today's wars’, interview with Terry Gross, Centre for Global Research, 24 July 2003, http://www.globalresearch.ca/articles/SIN307A.html. 35 S. Schooner, ‘Contractor Atrocities at Abu Ghraib: Compromised Accountability in a Streamlined, Outsourced Government’, Stanford Law and Policy Review, 16 (2005), 549, 555. 36 D. Avant, ‘E-notes: Private Military Companies and the Future of War’, April 2006, http://www.fpri.org/enotes/200604.military.avant.privatemilitarycompanies.html. 37 M. Minnow, ‘Outsourcing Power: How Privatizing Military Efforts Challenges Accountability, Professionalism and Democracy’, 46 Boston College Law Review, 46(2005), 989, 1020. 38 Committee on Oversight and Government Reform, ‘Private military contractors in Iraq: an examination of Blackwater’s actions in Fallujah’, September 2007, http://oversight.house.gov/documents/200709 27104643.pdf.

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formal accountability mechanisms, the practical obstacles of lack of information, limited

monitoring, and weak democratic oversight are common to all. Moreover, industry members

are quick to point out that PMSCs normally operate in information-scarce environments and

much of the media reportage focuses on ‘interesting times’. Thus sensational incidents are

aggregated into a pattern of the regular conduct of PMSC activities.39 But, equally, many

instances of wrongdoing do not come to light to at all. All of this obviously suggests that

anecdotal evidence is no fit basis for policy-making. Moreover, while there are good reasons to

distinguish public and private service providers, these distinctions should not prejudice

continuous efforts for better oversight and critical assessment of all actors.

That PMSCs and other private actors in conflict zones face similar challenges should

imply that means of regulation focused upon for the latter should also apply to the former; but

this is not the case. In particular, policy makers and scholars pay little attention to the

possibilities of industry self-regulation.40 This is despite the fact that for many reasons—the

threats they themselves face and need to increase contracting opportunities by differentiating

themselves from less responsible operations—many PMSCs have keenly worked to develop

internal codes of conducts and urge hiring States to clarify operational standards. At least three

industry associations: the International Stability Operations Association (ISOA) headquartered

in Washington DC, the British Association of Private Security Companies (BAPSC)

headquartered in London, and the now-disbanded Private Security Companies Association of

Iraq (PSCAI) that was headquartered in Baghdad,41 have claimed to combine the functions of

trade associations with those of industry regulators. Obviously this dual role produces

complications but the associations insist that better operational standards are the key to a

greater market share and hence their two functions are fundamentally compatible.42 They claim

their membership is on a highly selective basis and conditional on companies’ abiding by a

(elaborated) code of conduct; and their oversight is informed by their independence from States,

the industry’s collective operational expertise, and capacity to evolve in response to changes on

39 See Council for Foreign Relations, Debate on Private Security Contractors between Doug Brooks and Erica Razook, December 20, 2007, http://www.cfr.org/publication/15032. 40 D. Richemond-Barak, ‘Regulating War: A Taxonomy in Global Administrative Law’, European Journal of International Law, 22 (2011), 1027. 41 PSCAI was ‘disestablished’ on December 31, 2011, because ‘with the complete departure of United States Forces, and the direct oversight of PSCs by the Government of Iraq, the need for the PSCAI has withered.’ See http://www.pscai.org/. 42 For instance, ‘About ISOA’, http://ipoaworld.org/eng/aboutisoa.html.

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the ground. They recommend that States should hire only PMSCs ‘accredited’ by membership

to industry associations.

Of course, these associations’ regulatory claims, membership criteria, codes of conduct and

other practices deserve scrutiny as to their legitimacy, transparency, responsiveness to various

stakeholders and robustness in application.43 Indeed, their capacity to enforce high standards or

address serious acts of wrongdoing may be limited at present: they can expel a company, but

this has little consequence because, currently, association membership is rarely taken into

account in hiring PMSCs. For instance, after Blackwater’s infamous Nisour Square shootings

(more in the next section), ISOA announced it would undertake a review, to be possibly

followed by suspension of Blackwater. Preempting this, Blackwater withdrew from ISOA. This

had little consequence for its market profile, as the US Department of State renewed its Iraq

contract. Commentators point to this episode as amongst the reasons why industry associations

are marginal to the regulation of PMSCs.44 However, their lack of engagement and States’

failure to rate companies on the basis of association membership only stunts the possible

development of industry associations as responsible regulatory bodies.

Commentators’ failure to engage the regulatory potential of industry associations rarely

stems from empirical assessment. Instead, it is based on a basic discomfort with the fact that the

associations are private bodies, and even more, trade groups with close affinities with their

member companies. Thus there are concerns about their autonomy, bias, capture by specific

interests etc. While the same may be argued of government regulators too, their ‘public’ nature

is often seen to operate as a safety net. Freeman discusses how even those who accept a ‘public-

choice’ account of decision-making often cut it into half: they resist the description of legislators

and bureaucrats as motivated only by self-interest but accept it of private actors.45 For this

reason perhaps, commentators focus on why and how States should regulate PMSCs. This is

due to a mixture of factors: legal obligations to regulate PMSCs, capacity and supposed

willingness, that they claim are typical of PMSCs’ home States, i.e. States of incorporation; hiring

States; and host States (i.e., States in which they operate).

43 For a more detailed of the regulatory possibilities of industry associations, see S. Ranganathan, ‘Between Complicity and Irrelevance? Industry Associations and the Challenge of Regulating Private Security Contractors’, Georgetown Journal of International Law 41 (2010), 303. 44 See for instance S. Chesterman and A. Fisher, ‘Conclusion: Private Security, Public Order’, in S. Chesterman and A. Fisher, (eds.), Private Security, Public Order (2009), 222, 224. 45 J. Freeman, The Private role in Public Governance, NYU Law Review, 75 (2000), 543, 556-563.

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Arguments that States’ legal obligations imply that they should regulate are relatively

uncomplicated, though particular accounts of State obligations may be open to challenge. But

arguments that capacity or will provide grounds why States should regulate are more

dangerous; however sympathetic one may be to the considerations for which they are

advanced. For example, some commentators suggest that a PMSC’s home State is obliged to

regulate where the host State is unable to; but, as Chesterman and Fisher note ‘international law

is yet to solidify such a shift’.46 Moreover, as I will discuss in the next section, arguments of

capacity and will may be overstated when made in the abstract.

By questioning assumptions underlying a preference for State regulation, I do not claim

it is undesirable, or industry regulation suffices, or that public and private distinctions are

meaningless. Indeed, as discussed above, it is entirely appropriate to seek constraints on what

may be outsourced by a State—and this potentially includes its regulatory functions. But, I

argue against dismissing the possibilities of industry self-regulation, for it does not infringe

upon State regulation. Indeed, industry self-regulation can effectively complement Atate

regulation. For this it must, however, be embedded within a proper framework which regulates

the industry associations themselves according to internationally accepted standards, and also

empowers them by giving their activities more teeth (such as by making their certificates a

precondition for government contracts). The former is just as important as the latter for the

effective functioning of associations, because at present, while associations claim that they

adopt operational standards, such as codes of conduct for member companies, in consultation

with human rights advocates and lawyers, there is much confusion about the applicable rules,

principles, etc. Various multi-stakeholder initiatives have sought to occupy the gap created by

the absence of formally-adopted international standards; these include the Voluntary Principles

for Business and Human Rights 2000, European Confederation of Security Services’ Code of

Conduct and Ethics for the Private Security Sector 2003; and the Sarajevo Code of Conduct for

Private Security Companies 2006.47

46 S. Chesterman and A. Fisher, ‘Conclusion: Private Security, Public Order’, in S. Chesterman and A. Fisher, (eds.), Private Security, Public Order (2009), 222, 223. 47 Discussed in D. Richemond-Barak, ‘Regulating War: A Taxonomy in Global Administrative Law’, European Journal of International Law, 22 (2011), 1027.

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The most recent, and probably most comprehensive, is the International Code of Conduct for

Private Security Service Providers, 2010 (ICoC).48 The ICoC is a counterpart to the Montreux

Document which, formulated under the aegis of the Swiss Government-International

Committee of the Red Cross (ICRC) Initiative,49 sets out legal obligations and best practices for

States (more in the next section). The ICoC provides a list of principles that should guide

companies to behave responsibly towards ‘all those affected by their business activities,

including Personnel, Clients, suppliers, shareholders, and the population of the area in which

services are provided.’ It includes specific commitments that companies must make towards

implementation of these principles: incorporate them in their codes of conduct, use them as the

basis for initial vetting and ongoing performance review of their personnel, in training

personnel, etc. The Code is not intended to exclude more rigorous rules and standards of

behaviour, and is to be applied by companies even if not stipulated in their contracts of hire.

This last addresses a common concern that PMSCs’ operational standards are only as good as

the will of their hiring entities; thus companies working for comprador governments or shady

private outfits pose much greater threat to human security. The ICoC also provides that each

signatory company must establish grievance mechanisms ‘to address claims alleging failure by

the Company to respect the principles contained in this Code brought by Personnel or by third

parties’, and outlines factors to govern these mechanisms including: their publication on a

public website, whistleblower protections, keeping records of proceedings, etc. The ICoC

website currently records 630 companies from over 70 countries—including many of the

leading players—as having signed the Code.

The ICoC also envisages the creation of an oversight mechanism to ensure that signatory

companies continue to meet all these requirements. In February 2013, a drafting conference of

representatives from industry, civil society, States and international organizations, was

convened in Montreux to agree on the terms of a ‘Charter for the Oversight Mechanism’, based

on a draft developed by a steering committee and subjected to public comments.50 The drafting

conference agreed on the articles of association for an ICoC Private Security Providers

Association.51 Under the articles, this Association, consisting of a General Assembly and an

48 http://www.icoc-psp.org/Home_Page.html. 49 See http://www.eda.admin.ch/eda/en/home/topics/intla/humlaw/pse.html. 50 http://www.icoc-psp.org/uploads/Draft_Charter.pdf. 51 http://www.icoc-psp.org/uploads/ICoC_Articles_of_Association.pdf .

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executive Board, is responsible for certification (article 11), reporting monitoring and assessing

performance (article 12), and receving and reviewing complaints about specific companies

(article 13). These articles 11-13 provide in broad outline the scope of all three tasks, but the

specific procedures are left to future development by the Board.

The ICoC represents an advance of industry self-regulation, acknowledged not least by

industry associations.52 Its selling point has been that it is an industry-driven, multi-stakeholder

effort. The ICoC Fact Sheet notes that the ICRC-Swiss Initiative leading up to the Montreux

Document, ‘encouraged members of the private contractor industry to reflect intensively on

their role and the positive contribution they could make regarding the respect for international

humanitarian law and human rights standards. Consequently, the industry embarked on a

process to take standard-setting and oversight further by developing [ICoC]’:

After a series of workshops with different stakeholders culminating in a Wilton Park Conference in

June 2009, substantial agreement was reached on the need for, and general structure of the [ICoC].

Following this commitment, a draft of the ICoC was developed by members of the private security

industry in cooperation with the Swiss Department of Foreign Affairs and facilitation by the Geneva

Centre for the Democratic Control of Armed Forces (DCAF) and the Geneva Academy of International

Humanitarian Law and Human Rights (ADH). In a series of multi-stakeholder workshops the final

version of the ICoC was agreed upon at the multi-stakeholder conference at the end of September

2010. Representatives of private security companies, industry associations, the governments of various

countries including the USA, UK, Canada, as well as humanitarian and non-governmental

organisations participated in the discussion facilitated by the Swiss government.53

At present, the existing industry associations can co-opt the ICoC as a template for their

regulatory activities. However, once the ICoC’s own oversight and governance mechanisms are

fully developed, it will be interesting to study their implications for industry associations: they

could possibly, though not likely, obviate need for oversight by the associations. It will also be

interesting to see whether governments that participated in the ICoC’s formulation will give

weight to it in their hiring –- for example, will they only hire ICoC signatories in good standing?

If so, this will be the crystallization of a long-urged accreditation mechanism that gives more

teeth to industry self-regulation.

52 See for instance ‘ISOA Applauds the Signing of a Landmark Code of Conduct’, November 9, 2010, http://ipoaworld.org/eng/press/159-20101109codeofconduct.html. 53 Factsheet, November 2011, http://www.icoc-psp.org/uploads/Fact_Sheet_ICoC_November_2011.pdf.

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IV. Unpacking State regulation

This section examines developments in, and lasting concerns about, State regulation.

Mechanisms of State regulation are the primary focus for most commentators. Accordingly

there is vast literature which offers detailed analyses of existing frameworks for State regulation

in the few States that have established them, and of ongoing discussions in other States.54 These

analyses reveal the quite different approaches adopted by States: different definitions of

PMSCs, covered activities, accounts of duties to be undertaken as home, host and hiring States,

standards for licensing, jurisdiction and oversight, etc. This has indicated the need for clarity on

States’ international legal obligations—and some scholars have indeed sought to provide

systematic accounts of these obligations and when they are triggered.55

A major advance in this regard has also been made by a group of States under the aegis of

the dialogic ICRC-Swiss Government multi-stakeholder process. Based on consultations with

representatives from civil society and the industry, in September 2008, 17 States—including

several key home, host and hiring States—finalized 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.56 The first part of the Montreux Document provides a

summary of obligations of home, host and hiring States under international humanitarian and

human rights law, as well as obligations that all other States have. These are, mainly, duties to

prevent abuses of human rights and humanitarian law, to not actively participate in these

abuses, and to investigate and prosecute in wake of abuses committed. The Document also

points out circumstances in which States may be directly responsible for abuses. The document

recalls States’ obligations to enact legislation in furtherance of their international legal

54 For instance M. Caparini, ‘Domestic Regulation: Licensing Regimes for the Export of Military Goods and Services’, in S. Chesterman and C. Lehnardt, From Mercenaries to Markets: The Rise and Regulation of the Private Military Companies (2007), 198; C. Ortiz, Regulating Private Military Companies: States and the Expanding Business of Commercial Security Provision, L. Assassi et al., (eds.), Global Regulation. Managing Crises After the Imperial Turn (2004), 205; E. Krahmann, States, citizens and the Privatization of Security (2010); R. Taljaard, Implementing South Africa’s Regulation of Foreign Military Assistance Act, A. Bryden and M. Caparini (eds.), Private Actors and Security Governance (2006), 167. 55 C. Lenhardt, ‘Private Military Companies and State Responsibility’, in S. Chesterman and C. Lehnardt, From Mercenaries to Markets: The Rise and Regulation of the Private Military Companies (2007), 139; O. de Schutter, ‘The Responsibility of States’, in S. Chesterman and A. Fisher, (eds.), Private Security, Public Order (2009), 25; M. Cottier, ‘Elements for contracting and regulating private security and military companies’, International Review of the Red Cross, 88(2006), 637. 56 http://www.eda.admin.ch/eda/en/home/topics/intla/humlaw/pse/psechi.html.

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obligations, in particular to provide penal sanctions for grave breaches of Geneva Conventions.

The second part of the Document sets out good practices for States to follow in regulating

PMSCs, including procedures for licensing, selection and contracting of PMSCs, monitoring and

oversight, and investigation and prosecution.

The preface clarifies that Montreux Document is not legally binding. But, this does not make

it toothless, for it claims, in effect, to be a restatement of States’ existing obligations under treaty

and customary law. The first part is significant as an expression of key States’ understandings of

such obligations; and is bolstered by formally-expressed support from 19 other States. The

second part is different, for the document clarifies that not all suggested practices would be

appropriate in each context and leaves it to States to implement these at their discretion. These

practices serve to aid States in formulating their regulatory strategy, and offer basic indicia that

we may use to evaluate their efforts to regulate.

The Montreux Document represents the state of the art in terms of States’ formal obligations

and best practices, and is probably the most we should wish for, at least in the short term. While

the UN Working Group has produced a draft convention (of wider ambit than situations of

armed conflict), Juma notes several obstacles to its adoption, including: disagreements as to

what are inherently governmental services, objections that its licensing procedure is too costly,

need for broader consultations than those pursued by the Working Group, the Working

Group’s lack of mandate to draft such a convention, etc.57 Such objections do arise in any effort

to establish a formal international regime, and perhaps we will see them being overcome in

time. Even so, the need for a convention is not a foregone conclusion. At this time, it is critical

that States actually implement existing obligations. Creating new ones, or focusing on the

merits of this or that licensing mechanism in face of evidence that they fail to adhere to even

basic contracting procedures seems like a misplaced priority, particularly if –- as White

suspects—this only serves to polarize the international community, undermining the

cooperative spirit of the Swiss-ICRC initiative:

The real problem though lies in the Draft Convention’s chances of success when faced with the

Montreux Document and ongoing process. There are some real incompatibilities between the

57 L. Juma, Privatisation, ‘Human Rights and Security: Reflections on the Draft International Convention on Regulation, Monitoring and Oversight of Private Military and Security Companies’, Law Democracy and Development, 15(2011), 1.

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substantive provisions (especially as regards the disagreement as to what can be outsourced to

PMSCs) as well as the form of the two international instruments. There is a danger that international

hard (treaty) law if it is adopted will attract a different clientele of states than the soft law of the

Montreux process. States connected to the PMSC industry are more likely to stick with and entrench

the Montreux process, and those opposed to PMSCs as a modern form of mercenarism are more likely

to support the Draft Convention process.58

Incidents such as Blackwater employees’ 2007 unprovoked shooting of 17 Iraqi civilians in

Nisour Square, Baghdad, are a reminder not only of the grave threat that PMSCs pose to

communities in which they operate, but also of the gap between States’ legal obligations and

practice, pointing to urgent need for better implementation of existing laws. I have discussed

the Nisour Square incident and what followed in terms of United States and Iraq government’s

responses elsewhere, and will not recapitulate all that detail here.59 However it is worth

reflecting on the insights offered by this incident into legal and practical obstacles to effective

regulation by States. These are in addition to the common problems of physical oversight in

conflict zones.

In particular, Nisour Square was followed by territorial struggles between the United States

and Iraq, and between various US Departments. In the months following the shootings, Iraq

conducted its own investigation, and sought to revoke the immunity that it had earlier

provided contractors (a hangover from the period of the Coalition Provisional Authority

established after the toppling of Saddam Hussein), and announced a six-month period for

removal of Blackwater from its territory. The United States sought to keep the contractors under

its own jurisdiction and the US State Department renewed Blackwater’s contract. Within the

United States, the legal framework is fragmented and different laws apply based on which

department has hired the contractors. Executive oversight is also fragmented, and in this case,

was marked by struggles between the Department of State and Department of Justice. In

October 2007, together with the Department of Defense (which also hires Blackwater) the State

58 N.D. White, ‘The privatization of military and security functions and human rights: comments on the UN Working Group’s Draft Convention’, Human Rights Law Review, 11(2011), 133, 150. 59 S. Ranganathan, ‘Between Complicity and Irrelevance? Industry Associations and the Challenge of Regulating Private Security Contractors’, Georgetown Journal of International Law 41 (2010), 303, 350-3; S. Ranganathan, ‘Constructing Governance, but Constructive Governance? The emergence and limitations of a dominant discourse on the regulation of Private Military and Security Companies’, Asian Society of International Law Working Paper, 2009. References for facts cited here can be found in both these works.

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Department finalized a Memorandum of Understanding on PMSCs’ rules of engagement

applicable, but included no mention of the consequence of violating these rules—and no

reference to the Justice Department. Moreover, even as the Justice Department was framing

charges against the contractors involved in the shootings, the State Department granted them

immunity in return for information about the incident. The Justice Department then used the

statements recorded by the State Department as the basis for indictments of manslaughter, but

in December 2009, a Washington DC Federal Court dismissed the case, on the basis that the

‘Justice Department’s use of the statements the guards gave in exchange for immunity

compromised their right to a fair trial’. Recently, however, a Federal Appeals Court has

reopened the case – and the US Supreme Court has upheld its decision to do so.60

In all, the above picture is sobering, though it would be an exaggeration to claim that

Blackwater has enjoyed complete impunity. The United States did take some steps: an FBI

investigation, a joint commission with Iraq, termination of Blackwater contracts by various

departments (albeit temporarily) and the Justice Department’s prosecutions. Blackwater was led

to change its name (to ‘Xe’, and then ‘Academi’) and management, in a bid to restore its

reputation. However, the problem is –- and it is not particular to the United States—that though

such scandals may galvanize States into activity leading to some reform in their legal and

administrative structures, this peters out once the spotlight shifts. Before Nisour Square, we had

Abu Ghraib, and there too the aftermath unfolded in a similar way.61 A full analysis of US

regulation of Blackwater reveals that practical considerations such as long standing reliance on

a company often override all other imperatives in regulating PMSCs.

The problem then, is not of the lack of law (though in many States, including the United

States, legal reforms towards more cohesive regulation of PMSCs are welcome); in some States,

it is more urgently of better implementation of legal tools that are already in existence, i.e. of

showing greater will, and overcoming collective action problems and other political obstacles.

In other States, the problem, more gravely, is lack of capacity. This was true for Iraq to the

extent that dependence on the United States precluded any real possibility of its taking

60 M. Schmidt, ‘Reopening of Blackwater Case confuses Iraqi Victims’, New York Times, April 26, 2011, p. A14; R. Devereaux, ‘Blackwater guards lose bid to appeal charges in Iraqi civilian shooting case’, The Guardian, June 5, 2012. 61 See L. Dickinson Outsourcing war and peace: Preserving public values in a world of privatized foreign affairs (2011), Chapter 2.

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measures against US contractors; and is even more so for governments that rely on PMSCs so

heavily that their relationship is not quite a principal-agent one.

Often missing from the story of whether States can, will or should regulate PMSCs are the

victims themselves: members of the communities in which PMSCs operate, employees and sub-

contractors. Their rights are hostage to wheels of criminal justice that grind exceedingly slowly

when they grind at all, making them, effectively, victims twice-over. The New York Times

reports that Iraqis have reacted to the story of the reopening of the Nisour Square case mainly

with ‘confusion’ and the sense that this is yet another false dawn.62 There is indeed little to

reassure them, given that their only option is to rely on the will of a foreign State—the United

States. Iraq’s jurisdiction is legally and practically limited; and that of the International Criminal

Court is excluded. It is sobering that to a large extent, the Iraqi victims of Nisour Square have

remained invisible; their personal tragedies recorded only in terms of the numbers killed (17)

and estimated injured (many). There is an urgent need for avenues of redress that place those

immediately affected in the foreground, and remedy the infringement of their rights.

These, several scholars have suggested, must take a different form from (though they may be

additional to) criminal justice mechanisms. Dickinson suggests PMSCs’ contracts of hire should

include third party rights for local communities in which these companies operate, enabling

them to sue PMSCs for breach of contract; she also explores the possibility of treating contracts

for hire as ‘trusts’, such that victims could claim directly rights against the hiring entity if

PMSCs commit abuses.63 She also discusses the establishment of private grievance mechanisms.

Fisher too explores various possibilities in this regard, rejecting purely governmental or

intergovernmental mechanisms as probably unrealistic—they will ‘necessarily require

dedicated institutional resources, and involve a tremendous amount of bureaucracy’—and

purely industry-run mechanisms such as ISOA’s as lacking legitimacy. She suggests that the

most effective means may be for ISOA and other industry associations to ‘lead the

establishment of a multi-stakeholder grievance mechanism to which its member companies

would be required to submit.’64 Both Fisher and Dickinson suggest, as additional measures, the

62 J. Risen, ‘Ex-Blackwater Guards face renewed charges’, New York Times, April 23, 2011, p. A6 63 L. Dickinson, Outsourcing war and peace: Preserving public values in a world of privatized foreign affairs (2011), Chapter 5. 64 A. Fisher, ‘Accountability to Whom?’, in S. Chesterman and A. Fisher, (eds.), Private Security, Public Order (2009), 46, esp. 67-68.

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establishment of a local ombudsman to promote dialogue between local communities and

PMSCs, and mechanisms of conciliation between companies and affected groups. These are

interesting suggestions and rightly focus on a major lacuna in the accountability of PMSCs.

Their realization, naturally, is a complicated matter, for they indicate procedures far more

intricate, resource-driven and locally-grounded than currently exist.

It is promising that ICoC too makes reference to the establishment of grievance procedures

by signatory companies for the benefit of company personnel and third parties, and its

Association gives some flesh to this reference.65 This certainly offers a platform for constructive

engagement between stakeholders, and to the extent it signifies a new mood for accountability,

it is welcome. One awaits further developments, especially the procedures to be developed by

the Board, with anticipation.

V. Conclusion

This chapter provides an account of the impact that PMSCs have upon various dimensions of

human security, and reflects upon various developments for their regulation. There is no doubt

that the PMSCs have an immense role to play in quality of life experienced by local

communities within conflict zones. No account of the impact of the Iraq war on the physical,

economic, political, community, and environmental implications for the Iraqi population could

be meaningfully conducted without regard to the huge contributions, both positive and

negative, of US and Iraqi military and security contractors. This has been, if anything, even

more the case for several African countries. Indeed, we have seen in the writings of the African

scholars, quoted earlier, that the experience of citizenship in Angola, Sierra Leone, and several

other countries has been shaped to a remarkable extent by PMSCs. Moreover PMSCs cannot be

described (and dismissed) as mercenaries who have usurped State power. Instead, PMSCs

represent the changing manner in which sovereignty and government are expressed—as the

primary locus of regulation, rather than the performance of security functions.

It is however, equally misleading to disregard the role that non-state actors—PMSCs

themselves, industry associations, multi-stakeholder initiatives—can and do play in regulation

65 Art. 13, Articles of Association, http://www.icoc-psp.org/uploads/ICoC_Articles_of_Association.pdf. See also Steering Committee Concept Paper: Areas requiring further consideration for the ICoC, http://www.icoc-psp.org/uploads/TSC_Concept_Paper-final_2011May.pdf.

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of PMSCs. They complement and facilitate effective State regulation, and occasionally may even

fill regulatory gaps created by States’ inability or unwillingness to exercise control over PMSCs.

To recall only one example, the ICoC provides a clear set of standards for PMSCs to fulfill even

if these are omitted in their contracts with States. Indeed, the drafting of the ICoC, initiated

much later than the drafting of the Montreux Document, is indication that the previously

reductionist approach to thinking about the regulation of PMSCs is now in retreat. There is

greater appreciation of the variety of interests that deserve attention, leading to more nuanced

discussion of functions that should not be outsourced, accountability to local communities, and

the prospects of industry self-regulation. There is also more emphasis on dialogue amongst

various stakeholders: States, civil society and the industry. As a result, though a single

overarching framework may elude us, there is convergence on legal and policy commitments of

PMSCs, and of States in outsourcing to PMSCs, towards various affected groups. Obviously all

is not solved; among the many problems that remain is the undeniable fact that even the

improved multi-stakeholder dialogue keeps many perspectives, State and non-state, on the

margin. Even in academic commentary—not excluding this chapter—specific State-PMSC

relationships, such of the United States with PMSCs in connection with Iraq, dominate.

This is, however, only a reminder that the challenge of regulating PMSCs operating in zones

of conflict and disaster must necessarily remain ongoing. Moreover, it is a challenge that

provides a clear role for us, as scholars and practitioners committed to promotion of human

rights and welfare. It is necessary to persuade various stakeholders to follow up their paper

commitments with action, to reflect on and advocate necessary improvements, and to build

platforms for dialogue. Most importantly, we must focus on foregrounding local communities,

for they bear the immediate brunt when things go wrong, but otherwise remain invisible. These

tasks must constantly engage our critical scrutiny, creativity and sensitivity. Human security is

everyone’s responsibility.