This panel was convened at 9:00 am, Friday, April 5, by its moderator, Andrew Clapham of the Graduate Institute of International Studies in Geneva, who introduced the panelists: Faiza Patel of the UN Mercenaries Working Group; Meg Roggensack of Human Rights First; Mirko Sossai of the University of Rome III; and Valentin Zellweger of the Ministry of Foreign Affairs of Switzerland.
INTRODUCTORY REMARKS BY ANDREW CLAPHAM *
I am very pleased to be able to introduce such a knowledgeable and experienced set of speakers for this panel on private security companies. We have conceived the presentations so as to highlight the complex interaction between international law, regional arrangements, national legislation, and the latest multi-stakeholder initiatives in this sector. The panelists will be explaining the latest developments, as well as offering their perspectives on how the regulatory framework is developing. The focus is on preventing human rights violations, preventing companies from operating who have not put in place the necessary measures to prevent human rights violations, and on developing new forms of accountability.
By way of introduction, let me explain a bit why there is so much concern over this industry. We have all read of tragic incidents whereby civilians are shot on the streets of Bagdad or prisoners are tortured in Abu Ghraib. The complexity of litigating such cases and the knowledge that the industry is growing and being deployed in other complex environments (such as the seas off the coast of Somalia) has generated considerable concern in many quarters. Events often take place in locations where there has been a breakdown in the rule of law and accountability before the courts of the state of nationality is not always practicable. Moreover, the issue is more about changing the corporate culture and instilling corporate responsibility than individual punishment.
At this point I should like to make a few rather more theoretical points. We all know that international law and international relations have for some time been focused on the behavior of states and their interaction. The opening line of Brierly's Law of Nations until very recently read: "The Law of Nations, or International Law, may be defined as the body of rules and principles of action which are binding upon civilized states in their relations with one another." We have to admit that nonstate actors have not been considered proper subjects of international law or of scholarship. But perhaps the focus is shifting and we now have a wider field of vision. However, simply considering these players does not help us to determine their rights and obligations. When we try to apply international standards and human rights in particular to a nonstate actor such as private security companies, two policy arguments immediately raise their heads. First, this is said to raise an issue of legitimacy, and second, a question of dilution.
By treating companies like states and treating private security like the police or military, we are said to be legitimizing their activity; by seeking new standards, we are recognizing their worth and implying approval of the privatization of such functions. This is the legitimation problem. The dilution problem runs as follows. By focusing on the companies rather than the states where they operate, one dilutes the focus on the responsibilities of states and governments. In the words of one influential scholar, one "lets the state off the hook."
There is some value in these arguments, but my response would be that first we continue to work on the laws of war, recognizing all the time that going to war is a bad thing. Are we encouraging or legitimizing it? Perhaps a little, but the alternative is to leave the atrocities unaddressed and unpunished. Second, it is possible to address the companies and the states at the same time. It is true that there is only a certain amount of time and energy to be spent on such topics, and so addressing the companies may lead to diminished attention on states, but in the end this is worth it when one considers the challenges that this sector presents.
Let us take a simple but typical example. A South African company employing Ukrainians and Serbs is operating in Somalia. An incident happens involving a Ukrainian member of staff who disappears into Africa. The South African government has already banned nationals from working for this company, and the government in that part of Somalia is nonexistent. How do we begin to bring the company into line and ensure redress for the victims and ensure non-repetition? Not, I would say, by insisting on the international law of state responsibility, but rather by highlighting the misbehavior of the company and focusing on the liability and reputation of that company.
In this panel you will observe three shifts that are prevalent in this work. First, a shift which takes international law beyond the state and the individual onto a plane which is inhabited by corporate entities and business of all sorts. The discussion in the U.S. Supreme Court concerning the Alien Tort Statute is unlikely to affect how the international framework addresses this wider set of actors.
Second, there is a shift from actual international law to norms and principles that are negotiated and adopted by the relevant parties. These are not necessarily in the form of treaties or UN resolutions but can be codes of conduct, voluntary principles, and, of course, the Montreux Document. What is interesting here is that companies themselves will go beyond the traditional norms accepted by states. Because the texts are not treaties, one can go into much greater levels of details than one finds in human rights treaties.
Third, there is a shift beyond the traditional forms of accountability towards new ways of affecting corporate behavior. So, for example, the emphasis has been on the certification of companies as being fit to operate. The prospect of gaining or losing a certificate could be as effective, if not more effective, in affecting behavior than winning or losing cases in the courts. Demanding not only certification but also compliance with codes of conduct in the context of procurement can be particularly effective, especially when this is part of the policy of a client such as the United States or the United Nations (the latter has a mandatory requirement that an armed private security company must be a member company of the International Code of Conduct for Private Security Service Providers). It is becoming clear that one of the greatest forms of leverage in this area is companies seeking to minimize risks to their reputation. We will be hearing more about how the new Articles of Association (finalized just a few weeks ago) have developed complaints mechanisms and a form of monitoring which can act to highlight some of the worst forms of abuse in this sector.
This is a fast-moving area in which imaginative solutions are being sought to prevent human rights violations and find forms of redress for the victims, and our panelists will highlight that this is a work in progress. We look forward to hearing from them and hearing from the audience suggestions on how to build an effective normative framework.
* Professor of Public International Law, Graduate Institute of International Studies, Geneva, Switzerland.
REGULATING PRIVATE MILITARY AND SECURITY COMPANIES: A COMPREHENSIVE SOLUTION
By Faiza Patel *
Since 2008, the United Nations Human Rights Council's Working Group on Mercenaries has been charged with studying the effects of the activities of private military and security contractors on the enjoyment of human rights and drafting basic international principles that encourage respect for human rights by those companies. In addition to studying the burgeoning literature on the issue, the Working Group conducted a number of field visits to understand the practical human rights implications of the privatization of military and security functions. Our missions, which included discussions with governments, civil society, industry representatives, and other stakeholders, focused on three groups of countries: (1) where contractors were typically headquartered (United States and United Kingdom); (2) from which contractor employees were recruited (Chile and Fiji); and (3) where contractors were used extensively (Afghanistan and Iraq). The Working Group concluded the following:
The expansion in the use of private contractors to perform a wide range of functions--from providing personal and convoy protection in war zones to participating in the detention and interrogation of prisoners in conflicts--meant that contractors were more and more in contact with civilian populations and in situations where very serious human rights abuses could and did occur.
Meaningful regulation of this sector was virtually nonexistent at the national level. Contractors frequently operated in countries where the rule of law was weak and the government lacked the ability to control the use of force on its territory. Generally, the home states of contractors did not have any particular regulatory structure for private...