The International Code of Conduct for Private Security Service

After the adoption of the Montreux Document, a group of companies calling themselves Private Security Companies came together to draft the International Code of Conduct for Private Security Service (hereafter ICoC) which can be used by companies when they are hired by states to offer services.607 The drafters acknowledge that private contractors’ activities have “potentially positive and negative consequences for clients, the local population in the area of operation and the enjoyment of human rights and the rule of law”.608 ICoC signatories endorse the Montreux Document and commit themselves to responsible provision of security services “so as to support the rule of law, respect the human rights of all

604See section 3.5 at 33 above.

605Ibid. 606Ibid.

607The International Code o f Conduct for Private Security Service (signed in 2010). 608Ibid.

persons, and protect the interests of their clients”.609 The signatory companies also acknowledge their “responsibility to respect the human rights of, and fulfil humanitarian responsibilities toward, all those affected by their business activities”.610

The Code defines PSCs and Private Security Providers as “any company whose business activities include the provision of security services either on its own behalf or on behalf of another, irrespective of how such Company describes itself’.611 The signatory companies seek to develop an independent governance and oversight mechanism that will monitor the implementation of the ICoC and company activities in the field.612 The ICoC also claims to complement existing “control exercised by competent authorities and does not limit or alter applicable international law or relevant national law”.613 Article 14 provides that the Code does not create legal obligations or legal liabilities on the signatory companies beyond those which already exist under national or international law”.614 Other undertakings made by signatory companies include compliance with applicable law, which may include IHL as imposed by applicable national or international law.615 Other undertakings made by signatory companies include to “take all reasonable steps to avoid the use of force, and if force is to be used, it must be used in a manner consistent with applicable law”.616 Article 31 requires personnel of signatory companies not to use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury or to prevent the perpetration of a particularly serious crime involving grave threat to life”. 617

Companies also make commitments concerning the management and governance of the companies. Article 45 provides that companies will exercise due diligence in the selection of its personnel.618 In Article 47, companies undertake to “assess and ensure that personnel are able to perform their duties in accordance with the ICoC while in Article 55, companies

609Ibid. 610ICoC 18 611ICoC 5 612ICoC 21. 613Article 14. 614Ibid. 615Article 21. 616Article 30. 617Article 31. 618ICoC 18. 107

undertake to ensure that personnel receive initial and recurrent professional training and are fully aware of the Code and all applicable international and national laws”.619 Companies also under take to “prepare incident reports documenting any incidents involving its personnel that involve the use of any weapon, under any circumstances or any escalation of force, damage to equipment or injury to persons” among other incidents.620

3.7.2.1 Weakness of the International Code of Conduct for Private Security Service

The ICoC can be said to be a development towards the right direction. Percy argues that the Code it is “a significant accomplishment given the very slow pace of regulation and the problems of creating international regulation”.621 Percy further argues that the ICoC takes a tough stance on human rights questions and this demonstrates their willingness to obey the law.622

However, the issue is whether the ICoC provides answer regarding the status of PMSCs under the principle of distinction as well as the challenges that arise because of PMSCs’ participation in armed conflicts. The terminology used by drafters in the ICoC suggests that the drafters avoided reference to private companies that are employed to take direct part in armed conflicts. Whereas the Montreux Document used the term PMSC, the Code only refers to Private Security Companies and Private Service Providers. Through using this terminology, the ICoC suggests that it does not regulate private military companies. Furthermore, the nature of services providers covered by the ICoC as well as the obligations imposed on states appear to suggests that it deliberately avoided any reference to PMSCs or does not deal with PMSCs which get involved in combat activities. For example, the ICoC stance on the use of firearms appears to suggest that it only applies to companies that only use firearms in exceptional circumstances. The ICoC requires personnel to avoid the use of force except in self-defence.623 However, it has been demonstrated in this chapter that PMSCs are involved in many operations that involve the use of force, not only in self-defence but also in offensive operations. Thus, it can be concluded that the ICoC cannot be relied on

619Ibid. 620Article 63.

621Percy 2012 International Review o f the Red Cross 954. 622Ibid.

623Article 30.

to regulate the conduct of civilian contractors who provide military force. More so, the ICoC does not regulate the involvement of security companies in armed conflicts. Therefore, it does not provide guidance on the status of PMSCs.

Some scholars have raised scepticism over the effectiveness of the self-regulation system. Article 9 of the ICoC contemplates an independent governance and oversight mechanism. The concern is whether there will be proper regulation given that there will be no state involvement and companies will regulate themselves.624 Williams argues, “No other industries are allowed to regulate themselves entirely and the incentive structures run against a trade group acting as a strict enforcement and punishment agent for members of its own industry”.625 Percy notes that while the “industry currently has an interest in strong regulation, it may not always do so, and it may respond differently to new developments than would states or formal regulators”.626 It therefore remains to be seen whether self-regulation will work for the private security industry and if so, for how long. However, it can be submitted that the ICoC cannot be relied on to resolve the issues of status and accountability of PMSCs during armed conflicts.

3.8 Conclusion

This Chapter sought to demonstrate the challenges that the principle of distinction is facing as a result of changes that have taken place in modern armed conflicts. The key question was whether PMSCs’ involvement in armed conflicts fits in within the framework of the principle of distinction between combatants and civilians. It was argued that a bulk of PMSCs are contracted to perform functions that are at the heart of armed conflicts, which make their activities subject to IHL.

624Article 9 o f ICoC

625O F Williams “The UN Global Compact: The Challenge and the Promise” in (2004)14 Business Ethics Quarterly 755.

626Percy 2012 International Review o f the Red Cross 955. 109

In light of the arguments made throughout this Chapter, it can be concluded that while some PMSCs qualify as combatants as defined under Additional Protocol I and the Geneva Conventions, the bulk of PMSCs do not meet the combatant status for various reasons. Furthermore, treating PMSCs as civilians is not a viable option as it breeds contempt of IHL by states and threatens the protective mandate IHL has on civilians. The gaps that are currently present in the law allow states to rely on PMSC services in armed conflicts without incurring any responsibilities that come with such participation in armed conflicts. This therefore creates impunity for PMSCs, companies and states. More so, the option of dealing with PMSCs activities under individual, superior and state responsibility does not seem to be available due to the complex relationship between PMSCs and states, the complicated manner in which PMSCs operate and the loopholes in the provisions which deal with individual, superior and state responsibilities. Furthermore, recent attempts that have been made to deal with PMSCs activities, namely Montreux Document and the ICoC do no resolve the challenges posed by the involvement of PMSCs in armed conflicts, as they do not invent any new rules to deal with challenges created by PMSCs. Therefore, it can be concluded that there is need for the adaptation of the principle of distinction for it to be applicable to the practice of outsourcing of military services to PMSCs during armed conflicts.

Chapter 4: Other Developments That Challenge the Application of the Principle of