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Regulating Security Contractors

PRIVATE SECURITY contractors (PSCs), the term used by the United States, and private military security contractors (PMSCs), a term more commonly used by other countries, are an integral means of support for government operations, particularly in post-conflict areas such as Iraq. As of June, the U.S. government had at least 19,000 PSCs on the payroll in Iraq with expectations of adding more, according to the congressional Commission on Wartime Contracting in Iraq and Afghanistan. These PSCs perform a wide range of duties, including patrols, route clearance, and quick-reaction combat.

PSCs have raised concerns, especially with regard to incidents such as Blackwater guards’ killing of Iraqi civilians in Nisour Square in 2007, an event that prompted a closer look at how these types of personnel were being regulated and what standards or rules applied to them.

“Take the not uncommon scenario of a company based in one country, hiring nationals of several other countries to provide private security services in still other countries, crossing borders as required by their work. In this situation, it is hard to know what laws apply and even more difficult to enforce them,” says Anne-Marie Buzatu, privatization of security program coordinator at the Geneva Centre for the Democratic Control of Armed Forces.

Switzerland is leading an international effort to codify a Global Code of Conduct for PMSCs.

Switzerland refers to the code as the “product of an initiative being launched by industry associations, corporations, and individual business leaders with the assistance of the government of Switzerland and in coordination with the governments of the United Kingdom and the United States and other stakeholders and relevant experts.” The code, when finalized, would ideally be signed onto by PMSC companies.

Although the U.S. Department of Defense has its own evolving PSC regulations, a global effort is vital, says Gary Motsek, deputy assistant secretary of defense for program support. “We’re supporting the efforts of industry primarily via the Swiss to develop a code of conduct that’s applicable worldwide, because we don’t operate [in] a vacuum in these operations,” he says.

The intent is to have the industry bring itself “to a common level of acceptable standards that we can apply so that we all operate in a common way with a common set of robust standards that are auditable,” Motsek explains. It’s also important to have a grievance mechanism for going back to the authorities for “an independent assessment as to whether or not something ill has occurred” in an incident, he says.

The code of conduct includes guidelines specific to various scenarios, such as the use of force, and for the training and vetting of contractors.

The code references a certification system. Any company signing onto the process agrees to be assessed by an accountability mechanism, but the mechanism is not well defined, and the code does not provide specifics on how such a body will be formed and operated. The final copy of the code of conduct, released in August, states that discussions on the mechanism’s architecture are ongoing.

Many of the draft’s public commenters expressed concern over the code’s language and enforcement methods. James Cockayne, a senior fellow at the Center on Global Terror Counterterrorism Cooperation, agrees. “There is a real concern on the part of a number of people that the code is problematic in two ways,” he says. “First, because it doesn’t have clear enforcement arrangements, it will actually create greater uncertainty for the industry. And second, it gives companies the ability to free-ride on the code—in other words, it’s very easy for a company to say it’s abiding by the standards in the code, but there is little oversight and supervision of whether it is in fact abiding by those standards.”

A global watchdog is integral to enforcement of any sort of code of conduct, says Cockayne. “You need some kind of watchdog that can help regulators in one country understand how a company’s performing under a contract in another country if it’s going to regulate them effectively,” he explains.

Motsek stresses the importance of a certification mechanism, which the code includes but without explaining how it would work. A proposed bill that has been passed by the U.S. House of Representatives would mandate that contractors be certified in order to bid on U. S. government contracts.

Some commentators support that approach, but Ariel Siegelman of the Draco Group says these efforts may be most effective coming from the industry itself. “When a lot of government bodies come up with ideas of how to restrict the guys on the ground, I know that in my field, a lot of the guys on the ground kind of roll their eyes at the restrictions that are put on them by people who don’t understand the operations. It’s like there’s a double-edged sword here by people telling you, ‘yeah, we want this job done. Oh, by the way, you can’t do it the way that it needs to be done,’” says Siegelman.

Motsek agrees that the private security industry must be on board with the code. The Swiss government has included various industry groups, such as the International Peace Operations Association (IPOA) in discussions on the code.

But leaving enforcement to industry has its limitations. IPOA has its own code of conduct for PSCs, but Cockayne says it is ineffective. For example, per the code, IPOA would have had to investigate Blackwater for the Nisour Square incident, but Blackwater left the organization before an industry investigation took place, says Cockayne. (The case was investigated by various government and military agencies in both the United States and Iraq.)

Moreover, Motsek says that the IPOA’s primary goal is to promote its industry, rather than its code of conduct, which makes it different than the Swiss-led effort.

Buzatu says that PMSC regulation must be enforced by organizations at all levels. “If the different tiers of regulation (e.g., local, state, international, contractual) use the same or substantially similar international standard, such as that contained in the Global Code of Conduct, then it is more likely that it will be enforced on at least one tier.”