Christopher Kinsey, Defence Studies Department, King’s College London and Col. Christopher Mayer (U.S. Army Retd)
This is the first of a two-part piece.
In December 2021, the International Code of Conduct Association for Private Security Providers (ICoCA) voted to change the definition of security services, significantly expanding their scope and covering their entry into roles that, arguably, include direct participation in hostilities. For the past few years, the number of participants in the ICoCA remained stagnant, at 99 private security companies, and seven governments. The proposed changes are, according to statements by the ICoCA Executive Director, aimed at trying to increase its membership and thus revenue. The unintended consequences of these amendments could be far reaching, but in the wrong direction.
Part One of this post describes how the International Code of Conduct and its Association came about, why it focused on private security services in conflict and post conflict situations and introduces some of the probable consequences of changes to the Code. Part Two of this analysis takes a more detailed look at legitimising the privatisation of war, the erosion of government monopoly of force, and how changes to the Code will set up the ICoC Association for failure.
Original purpose of the ICoCA
Between 2006 and 2008, seventeen governments came together under the leadership of Switzerland and the International Committee of the Red Cross to address particular concerns about the unregulated use of force by private military and security companies (PMSC) in conditions of armed conflict, post-conflict and other comparable conditions. In this effort, governments consulted with academia, non-governmental organisations, and PMSCs. This Swiss Initiative produced an international framework known as 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 (The Montreux Document.)
The Montreux Document re-stated existing international legal obligations and recommended good practices for governments in their oversight and use of private military and security companies. Today, 58 governments and three international organisations endorse this framework and participate in an international forum to discuss implementation of the initiative’s good practices and identify emerging challenges.
The second phase of the Swiss initiative began in June 2009, at a conference sponsored by the Swiss Government. Industry representatives committed to pursuing an international code of conduct (ICoC) built on the success of the Montreux Document, working in partnership with key governments, non-governmental organisations (NGO) and other key stakeholders. The intent was to provide a means for private security companies to endorse the principles of the Montreux Document and identify additional good practices to avoid infringing on the rights of others.
In November 2010, 58 companies and seven industry associations signed the International Code of Conduct for Private Security Service Providers, committing themselves to the responsible provision of security services in a manner that supports the rule of law, respects human rights, and protects the interests of their clients. Consistent with the full name of the Code, it was addressed to organisations providing security services, which are defined as those engaged in the ‘guarding and protection of persons and objects, such as convoys, facilities, designated sites, property or other places (whether armed or unarmed), or any other activity for which the Personnel of Companies are required to carry or operate a weapon in the performance of their duties.’
Following the precedent of the Montreux Document, the ICoC limited its applicability to regions where PSC activity was of greatest concern, that is, ‘areas where the rule of law has been substantially undermined, and in which the capacity of state authority to handle the situation is diminished, limited, or non-existent.’ The remaining functions of PMSCs described in the Montreux Document, the ‘maintenance and operation of weapons systems; prisoner detention; and advice to or training of local forces and security personnel’. were excluded from the Code’s definition of security services. Ultimately, more than 700 companies signed the ICoC.
The ICoC required two implementing developments. described in Paragraph 7 of the Code. First, ‘objective and measurable standards for providing Security Services based upon [the] Code.’ This was accomplished in 2012, through the work of a technical committee of more than 200 experts from 15 countries and the United Nations The second requirement was ‘external independent mechanisms for effective governance and oversight.’ The organisation intended to meet this requirement was chartered under Swiss law in 2013 as the International Code of Conduct Association (ICoCA) for Private Security Service Providers. The ICoCA is a multi-stakeholder initiative, with membership including private security companies, governments, and civil society organisations.
Participation in the ICoC has been less successful than the initial enthusiasm for the Code might have suggested. At its height, only 115 Private Security Companies were members and, as of December 2021, membership stood at just 66 PSCs. (Note: There are also 32 non-member ‘affiliates’ of the ICoCA.) Government participation has also failed to meet expectations. Only seven of the 58 governments that participate in the Montreux Document and its Forum are members of the ICoCA. Of those seven members, none are developing nations which are typically most at risk from non-state armed groups.
This lack of participation is troubling as the concerns that drove the Swiss Initiative remain widespread. There are 27 ongoing armed conflicts in the world today, at least 19 of which include activity by armed contractors. To cite only one example, Yemen has been in a state of civil war since 2014. Yemen’s Ministry of Interior and Trade recognises 35 domestic companies that meet the ICoC definition of a PSC, as well as the activity of foreign PMSCs. Neither Yemen nor any of its domestic PSCs are members of ICoCA.
Despite the ICoCA’s lack of success in attracting membership from PSCs active in conflict zones or the governments affected by these conflicts, the Association voted to expand its definition of ‘security services’ and to move outside of the original context of the Code, its Association, and the Montreux Document. Whereas the ICoC originally defined security services as those guarding and protecting persons and objects or other operations requiring the carriage and/or use of weapons, the recent expanded definition adds:
- guarding and transporting prisoners, operating prison facilities and assisting in operating camps for prisoners of war or civilian detainees;
- the checking, detention, or searching of persons, searching of premises or containers, and seizure of objects;
- counter-piracy services, armed or unarmed maritime escorts or onboard vessel protection;
- operational and logistical support for armed or security forces, including training and advice, intelligence, surveillance and reconnaissance activities;
- crowd management;
- operating and maintaining weapons systems;
- guard dog services;
- and the recruiting and training of security personnel, directly or as an intermediary, for a company that offers private security services.
The ICoCA also now intends oversight of these services wherever ‘there is a risk of human rights abuses and/or violations of international human rights law and/or civilian harm.’ This new context disconnects the ICoC from the scope of the Montreux Document. Particularly concerning is the addition of operational and logistical support for armed forces. When combined with operating weapons systems and the previous provision of any activity where personnel are required to carry a weapon, this implies ICoCA intent to oversee direct participation in hostilities.
Dangers of expanding scope
Expanding the scope of the ICoCA beyond armed guarding in hostile environments firstly dilutes attention to issues unique to armed contractors in combat and similar situations. It diverts attention and resources from this concern. It implies equivalence among services such as dog handling and customs inspection with those armed contractors. Even providing food and shelter for a refugee camp is now judged by the same principles as operating armed drone aircraft. The argument could be made that compliance with the Code and membership in the Association sets its members apart from quasi-mercenary organisations that perform similar functions, such as the so-called Wagner Group. That argument falls short.
The second danger lies in terms of the legitimisation of the privatisation of war. Currently, the ICoC requires members to use force only in individual self-defence or the defence of others. According to the International Committee of the Red Cross, this does not constitute direct participation in hostilities. The change to the definition of security services to include operational support for armed forces – and specifically the operation of weapons systems, reconnaissance and training and advice to armed forces – implies or clearly requires the use of offensive lethal force. In addition to making the section of the Code dealing with use of force self-contradictory, it arguably legitimises the privatisation of war.
Part 2 will continue with examining how changes to the ICoC may accelerate legitimising mercenary-like activity and lead to organisational failure of the ICoCA.