Christopher Kinsey, Defence Studies Department, King’s College London and Col. Christopher Mayer (U.S. Army Retd)

Changes to the International Code of Conduct for Private Security Service Providers: legitimising mercenary-like activity and organisational failure.

Ever since the French Revolution and the rise of the levée en masse, the role of mercenaries in war has been delegitimised. The mercenary has thus constantly, since the end of the 17^th century, been portrayed in a negative light, in contrast to the citizen soldier. The intention behind delegitimising the mercenary was to remove them from the battlefield, and thereby making it easier for states to consolidate their monopoly over the use of organised violence. However, the changes to the international code of conduct (ICoC – see Part One) fundamentally undermines this. Keeping mercenaries from participating in war has always been challenging, while delegitimising their participation has been fraught with political difficulties. 

Of course, their participation did not disappear totally after the French Revolution. But when they did become involved in wars, as they did in Africa during the period of decolonisation, hostility from the UN and its member states quickly followed, politically isolating them and their supporters from other legitimate participants. By singling them out in this way, it allowed the international community to level greater criticism at them than it would towards other legitimate participants. While local politics was the root cause of these wars, it was Hoare’s mercenaries who were condemned by the international community. This condemnation occasionally restrained mercenary activity, and this is still the case. But, for it to have any impact on today’s mercenaries, it must carry some authority otherwise they will simply ignore it. 

The problem is, the changes being made to the ICoC will erode further what limited authority the UN carries, making it harder for the institution to prevent mercenaries and quasi-mercenary organisations from participating in future hostilities. Worse, it is likely these amendments will do the opposite and actually encourage mercenary activity whether by individuals or quasi-mercenary organisations.

These amendments have the effect of opening the political and normative gates to legitimising combat provider organisations such as Russia’s quasi-mercenary group Wagner and the South African PMC Specialised Tasks, Training, Equipment and Protection (STTEP). Public statements in the media and by some government officials already promote a concept of moral equivalency between Russian private combat providers and Western contracted military support. This comparison will likely continue, supported by government officials from other countries who might have a vested interest in hiring out combat in their own country. For example, the government in Mali recently agreed to allow in Russian soldiers and contractors from Wagner to provide military and security training/services to help counter local insurgencies. Wagner was also hired by the Mozambican government to intervene in the Islamic insurgency in the Cabo Delgado region, while the company also operates across north and central Africa, Ukraine and Syria. The move from private security companies focused on protecting persons and property to the use of unlawful force by these newer “expeditionary conflict entrepreneurs” who “kill or train others to kill” in foreign conflicts, seriously risks undermining the government monopoly of organised violence. It also risks jeopardising the progress made in responsible private security services over the past ten years.

Another problem that privatising warfare brings is the displacement of State responsibility by encouraging and enabling another government to contract with PMSCs working in support of the interest of the first state. One example of this is the activity of Sewa Security in the Central African Republic (CAR). Sewa Security is registered in the CAR. but is managed and staffed by Russian expatriates. Sewa, in turn, is owned by Lobaye Invest, also registered in the CAR, but allegedly owned by Russian oligarch and Putin confidant Yevgeny Prigozhin. There are similar examples in other African states that do not involve Russia. The legitimacy provided by a PMSC’s membership in the ICoCA, with additional services covered by the international code of conduct (ICoC) such as training, advising, maintaining and operating weapons systems, could encourage broader use of this kind of proxy participation in armed conflict.

As the paragraphs above suggest, over the past three decades there has been a gradual move towards legitimising the use of private military companies in war. During the 1990s, hostility to African states using such companies to counter internal and external threats still received criticism from the international community, even though some African government became more willing to accept or procure help from them. This mood significantly changed after the deployment, since 2001, of tens of thousands of military and security contractors in Afghanistan and Iraq. Some organisations have even advocated that the market play a role in helping stem civil wars through direct participation on the battlefield.

While most states still see outsourcing combat operations as a step too far, the changes to the ICoC will make direct support to these operations, as well as military training, acceptable roles for the market to take on. Outsourcing this type of activity without sufficient state oversight and control also carries considerable risks to human rights. This is particularly so regarding who is going to monitor their actions and hold them to account if they break international law. Giving this responsibility to the ICoCA is unlikely to impress the Human Rights community, while there is also considerable risk to the government monopoly of organised violence. 

There are many debates about what constitutes inherently governmental functions. The different opinions largely revolve around different philosophies on the role of government in society. There is little disagreement, however, that fully functioning governments exercise a monopoly on the legitimate use of force and violence within the territories they claim to control. This is both a sovereign prerogative and sovereign responsibility. 

Expanding what the ICoC considers as legitimate security services threatens this government monopoly in several ways. First, as described above, it contributes to the acceptability of the privatisation of war, the idea that private entities can wage war on behalf of a government, without the oversight and control inherent to regular military forces. Second, by asserting that governments should only use companies that are certified by the ICoCA, it claims moral authority over a government’s sovereign decisions about the means and methods of warfare (subject to international legal obligations under the laws and customs of war.) Third, it allows governments to transfer their sovereign responsibilities to a foreign, private association (and one with limited membership and little influence.) Some Governments could be tempted to use ICoCA endorsement in lieu of exercising their own oversight and control of these privatised military forces, enabling government deniability for the actions of these companies. Although this possibility is remote for stable governments with strong rule of law regimes, it is a very real possibility for developing states, and particularly those that lack robust capabilities for oversight and control. 

Aside from the concerns discussed above, there is the risk of organisational failure by the ICoC.  Historically, there is a low success rate of organisations stepping outside of their core areas to attract new business (in this instance moving into the provision of military services). A study in the Harvard Business Review estimated that only 20 per cent of such initiatives are successful. These initiatives failed because organisations moved too far beyond their core business too fast into areas where they did not have the necessary capability, competence or capacity. The possibility of expanding covered services was recognised in the original text of the Code. Paragraph 7 specifies that the Code could expand to include maritime services, training, and guarding protected persons, but only after the principles and standards for such services were identified. The ICoCA, however, elected to expand into these next-step areas without first identifying relevant principles and standards. 

Success in moving out from a core area requires an organisation to first demonstrate success in that core area. The ICoCA has not done that. After more than seven years of activity and significant financial and regulatory support from the Swiss, US and UK governments, the ICoCA represents only 99 PSCs and seven governments. This is an insignificant proportion of those companies providing armed guarding in the 27 countries experiencing or emerging from armed conflict. Latin America includes 17 of the world’s 20 most violent cities and four of the five most violent countries. There are 16,000 PSCs operating in this region. Only 13 of these are members of the ICoCA. Only one third of the PSCs independently certified as complying with an internationally recognised standard for PSCs are members of the ICoCA. Even credibility among governments can be questioned, as ICoCA government members represent only about 12 per cent of those governments that endorsed the Montreux Document (See Part One).

The ICoCA Strategic plan for 2019-2023 identified the need to “diversify and expand ICoCA’s membership among companies, governments, civil society and other relevant stakeholders.” That plan, however, did not envision expanding the definition of “companies” beyond the Code’s core focus on private security providers. Instead, the plan called for expanding outreach to governments and commercial sector purchasers of PSC services and enablers of these services, such as insurers and trade associations. The plan called for the ICoCA to promote the advantages of ICoCA membership to those interested parties. This approach has not produced the hoped-for results.

The problem is that the ICoCA seems to struggle at making the case for ICoCA membership. The ICoCA competes in the arena of ideas. PSCs and their clients (commercial, government and NGO) must understand and accept the idea that the tangible benefits of ICoCA membership outweigh the increased financial costs of hiring ICoCA member PSCs and the public and international scrutiny that comes with using ICoCA-member companies. Competing ideas include due diligence relying solely on certification to internationally recognised standards (the preference of the US Defense Department) or no outside oversight whatsoever, with due diligence being the sole responsibility of the government that licenses PSCs or the organisation that contracts for their services. Expanding an organisation’s scope without first achieving success in its core area is not a successful business strategy.  

The Swiss Initiative, consisting of the Montreux Document and the International Code of Conduct, addressed an emergent need of the early 21^st century to preserve the Government’s monopoly of violence while recognising the growing presence of contractors in armed conflict or its aftermath. Both components of that initiative worked together to promote respect for International Humanitarian Law (IHL, also known as the Law of War) and International Human Rights Law, each in its applicable environment. Although they did not specifically address the rise of quasi-mercenary organisations, the elements of these documents provide a clear commitment to the responsibility of governments to control violence and the private sector to stay within the limits set by those governments and international law.  The recent turn by the ICoCA diverts attention and resources from the continuing concern of the use of force by civilians in armed conflict, blurs the distinction between legitimate use of force in self-defence and direct participation in hostilities and inserts itself into a government’s sovereign responsibility to conduct operations consistent with the IHL and other relevant international law. The result could be entirely opposite to the purpose for which the Swiss Initiative was intended, and lead to broader privatisation of war.