Canadian Consortium on Human Security

Doug Brooks and Shawn Lee Rathgeber

Private sector support for military and stability operations is not new, but there is clearly greater public interest in these ‘contingency contractors’ now, as well as legitimate interest in ensuring effective regulation particularly for the evolving role of “Private Security Companies” (PSCs). PSCs are a small subset – five percent – of contingency contractors but their prominence and significant security role in post-conflict environments make them the focal point for regulation.

Unfortunately, too many proposed regulatory schemes have been based on myths and exaggerations perpetuated by sensationalists, which is why providing legislative bodies with accurate information on PSC operations is essential. The industry has a clear responsibility and the central role in setting industry standards and ensuring self-policing. However, successful regulation must be a partnership including effective governmental oversight and law enforcement combined with educated customers.

Contingency contractors have been around for many years, though their roles and numbers depend entirely on demand. While some journalists and pundits have implied unchecked growth in the industry, the actual number of contractor personnel grows and shrinks depending on demand created by conflicts and disasters. The United States utilized some 700,000 contractors in the Second World War, 80,000 in Vietnam, and more contractors than soldiers during the major Balkan operations in the 1990s. Disasters like the Asian tsunami in 2004, hurricane Katrina and the Pakistani earthquake in 2005 require the same sorts of companies and skills as the peacekeeping operations in Darfur and Haiti and the stability operations in Afghanistan and Iraq.

From a regulatory perspective it is also important to make a significant definitional distinction between Private Military Companies (PMCs) and PSCs, and preserve the term ‘PMC’ only for the specialized firms that willingly engage in offensive operations, such as the no longer operational Executive Outcomes and Sandline International. PSCs are clear their civilian personnel provide only legal defensive and protective services. Unlike the PMC role, private civilian security is as common in stable countries as it is in contingency operations. Although the venue can be challenging, PSCs following applicable laws and rules are actually regulated and controlled similarly to other legal companies.

From a humanitarian perspective, security in peace operations is 90 percent of the problem but only 10 percent of the solution. Security must be in place for NGOs and others to do effective reconstruction and reconciliation. PSCs provide irreplaceable supplements to international or government security forces, freeing up military and police forces to focus on mandate enforcement. For the UN, logistics and support contractors keep blue helmets fed and supplied, but PSCs are frequently used as well to protect their headquarters, warehouses and staff.

Indeed, PSCs provide far too much capacity and efficiency for humanitarian communities to dismiss them out of hand. Clients and the other key players in contingency operations are demanding more structured controls, although there are in fact strong market incentives for companies to ensure ethical and professional operatives. Therefore, as the value, capacity and role of contingency contractors in peace and stability operations grows so does the necessity of ensuring that we have guidelines and laws for appropriate behavior.

Armed or not, contractors are predominantly locals and always considered civilians under international law. Companies will generally utilize as many locals as they are allowed to under their contracts, and only when they have no choice will they reach out to other nationalities that are inevitably more expensive and require substantial in-theater support. For example, more than 120,000 of the estimated 180,000 contractors supporting the coalition mission in Iraq are Iraqis with even higher proportions of locals to foreign nationals in Afghanistan. The employment of locals simplifies legal questions and provides vast economic and capacity-building benefits to stabilization efforts. This rule of thumb applies to PSCs as well, which means that effective accountability for individual contractors often requires improving – or reconstructing – the local legal system.

PSCs are mainly deployed to weak and failed states thereby complicating accountability. Even though the companies are commonly held accountable contractually and legally it is more difficult to ensure just and effective criminal accountability for individual employees. This is a key issue for the future since attracting mature professionals to the business requires confidence in established legal structures. Without some form of legal protection, the only people willing to do security work would be opportunists who may be less constrained by ethical and legal concerns. As a result, PSC clients prefer to see accountability systems in place especially when those clients are governments and NGOs. Even leaving aside the inherent ethical values found in most companies, this client interest is a reason most companies welcome the expansion of existing regulatory frameworks. It also explains the companies’ support for proactive roles by trade associations in developing industry standards.

Populations in distressed regions also desire transparency and accountability, not just for contractors but for occupying military forces, peacekeepers and even NGOs. While expatriate contractors working for the US Government in Iraq are under the Military Extraterritorial Jurisdiction Act (MEJA), one of the real weaknesses of the law has been the opaqueness of the legal process (a bill to address this opaqueness is currently pending in Congress). If locals do not observe effective legal processes underway after negative incidents the resulting resentment can undermine the larger mission. Moreover, there is no reason that PSC personnel should not be held to a higher standard than the peacekeepers and NGOs they serve alongside: companies are paid to provide professionals, not ‘bad apples’.

Industry can actually act much faster than policy-makers to address some of the key problems. The International Peace Operations Association (IPOA) takes an inclusive approach in designing our standards. IPOA is a standards-based, member led trade association with a Code of Conduct that was originally written by NGOs and human rights lawyers. It is regularly modified and improved upon in consultation with the NGO community and other concerned parties. Prior to joining the association all member companies of IPOA must agree to abide by a Code of Conduct. IPOA also has a Standards Committee which addresses alleged Code violations by working with the private security company to modify its behavior or even recommend their expulsion from the Association. The IPOA complaint system is designed so that anyone, whether inside or outside the industry, can bring a complaint against an IPOA member based on the Code of Conduct. The complaint form is available online on the IPOA web site (www.IPOAonline.org). Nevertheless, while internal industry pressure can do much to modify the behavior of companies, clients can make an even greater difference by making clear to their vendors that they will only contract with companies supporting ethical industry standards.

Unfortunately, despite the increasing role of the private sector in the field, not all contingency contractors are members of IPOA, and too few clients, including those in the NGO community, bother to verify that the PSC they are hiring is a supporter of industry standards. Getting the most vocal critics to support IPOA efforts has been a challenging task but is essential to broaden effectiveness. Industry associations cannot replace effective governmental legal systems but with the support of those most concerned that the industry operates professionally and ethically these associations can take huge steps in the right direction.