Private Military Companies

Private Military Companies

Private Military and Security Companies in 2013

United States views on international law [1] in relation to Private Military and Security Companies: On September 19, 2013, U.S. Ambassador to the UN in Geneva Betty King delivered remarks at the launch of the International Code of Conduct for Private Security Service Providers (“ICoC”) Association. For background on the new association, including the Articles of Association, see (link resource) icoc-psp.org. For additional background on the ICoC process, see this world legal encyclopedia (in relation to issues that took place in the year 2010) at 740-42. Ambassador King's remarks are excerpted below and available at (link resource) geneva.usmission.gov/2013/09/19/icoc/.

Some Aspects of Private Military and Security Companies

Let me start by thanking our hosts and acknowledging the critical role that the Swiss Government has played in this initiative since its inception. As most of you know, together with the ICRC, the Swiss co-facilitated the process that led to the development of the Montreux Document on private military and security companies in 2008. And when private security companies expressed an interest in developing sector-specific guidance based on the Montreux Document, the Swiss agreed to sponsor the process that eventually resulted in 2010 in the ICoC. Since then, the Swiss have facilitated the work of the multi-stakeholder Temporary Steering Committee (TSC), including through the support of the Geneva Center for the Democratic Control of Armed Forces (DCAF). Most recently, the Swiss government generously committed to providing over one million dollars of in-kind assistance to the Association over the next two years. Without their consistent and far-sighted support, this initiative would not be where it is today.

Developments

In addition to the countless hours that our team of experts from the Departments of State and Defense has already dedicated to this initiative, today I am pleased to announce that the United States looks forward to providing, subject to the availability of funds, a package of inkind and financial support for the initiative along the lines of that provided by other governments. Beginning next year, the U.S. government intends to provide staff support for the certification function of the Association. In addition, we intend to provide grant funds for the Association to use in carrying out its monitoring function. This is in addition to the time, energy, and funding that our colleagues in the Defense Department have invested over the last few years in fostering the development, under the auspices of the American National Standards Institute, of the PSC 1 and 2 management and conformity assessment standards, which are based on the Code. Finally, aware of the influence we have and the role we play as a client and regulator in this sector, we have committed to using our contracting processes to support this process. For instance, the Defense Department currently requires conformance with the PSC 1 standard for its private security contracts and the Department of State has committed to requiring conformance with the same, as well as membership in the ICoC Association, as a condition for bidding on its next Worldwide Protective Services contract.

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We support this initiative because we recognize the important role that private security providers play in complex environments. While it is undeniably the role of governments to provide security within their jurisdictions, private security providers support those efforts in contexts where state capacity is limited. It is precisely in these complex environments—areas of weak or non-existent state capacity—that private security providers can facilitate vital efforts that are central to our foreign policy and security objectives. Although private security companies help safeguard U.S. government facilities and personnel, the bulk of their work is devoted to the critical tasks of protecting humanitarian organizations delivering essential food, water, and medicine; development organizations providing support for strategic sectors; and critical private sector investments. However, it is in these same complex environments that private security company activity, if not properly managed, can most easily contribute to further destabilization and adverse human rights impacts.

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We have supported this initiative and will continue to do so because we believe it can play an important role in improving the standards for, and conduct of, private security companies operating in complex environments. This is imperative because, while we do our best to ensure responsible conduct by those PSCs which we contract and supervise, misconduct by other PSCs can sour public perceptions and undermine the positive impact of all PSCs. The United States believes that the principle method for regulating this sector must be through responsible, domestic legislation and regulation. That said, we also believe that multistakeholder initiatives like the ICoC, can and do play an important role in raising industry standards and encouraging the development of effective regulations by facilitating shared learning, monitoring performance, identifying best practices, and facilitating the resolution of complaints.

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This association, together with the ongoing development of international standards, will breathe life into the Code by creating an effective and independent governance mechanism that will promote respect for and adherence to the human rights principles and the law of armed conflict set forth in the Code. We see this as an important sector-specific development in-line and consistent with the UN Guiding Principles on Business and Human Rights and the OECD Guidelines for Multinational Enterprises. Through the adoption and implementation of standards based on the Code, companies are required to develop systems and policies to ensure proper due diligence, impact assessment, and grievance mechanisms. That is the starting point. Beyond that, the companies that become members of this Association are also committing to on-going reporting to, and monitoring by, the Association, as well as its facilitation of the resolution of complaints. These are meaningful commitments that can produce real results, and the companies that join this Association—especially those that have been involved in its development and committed to joining it from the start—should be commended for their leadership. The civil society organizations that have become founding members also deserve recognition for their willingness to participate in and lend their expertise to a process designed to build trust and constructive engagement among stakeholders that don't always see eye-to-eye.

Private Military and Security Companies in 2013 (Continuation)

United States views on international law [1] in relation to Private Military and Security Companies: In closing, the United States is honored to be a founding member of this initiative. There is much that remains to be done, and the soon-to-be introduced individuals who will make up the first Board of Directors all deserve our support… and probably our prayers! Though the challenges may be daunting, we should be proud of and motivated by the fantastic work that has been done to date. The United States will continue to work constructively to build on that success and ensure that this initiative demonstrates the potential of dedicated, well-intentioned companies, states, and non-governmental organizations to work together to effect meaningful change on the ground.

More about Private Military and Security Companies

In December, the United States participated in the Montreux+5 conference, commemorating the five-year anniversary of the adoption of the Montreux Document, which addresses international legal issues related to operations of private military and security companies (“PMSCs”) during armed conflict. See this world legal encyclopedia (in relation to issues that took place in the year 2010) at 740-42 regarding U.S. endorsement of principles articulated in the Montreux Document. Prior to the conference, the United States submitted a response to a questionnaire regarding its compliance with the international legal obligations and best practices contained in the Montreux Document. Excerpts from the U.S. submission follow. The submission in its entirety is available at (Secretary of State website) state.gov/s/l/c8183.htm.

Development

1. Provide examples, if any, of how you have determined which services may or may not be contracted out to PMSCs. If you have done so, please specify what and how services are limited, and how you take into account factors such as whether those services could cause PMSC personnel to become involved in direct participation in hostilities. Please indicate by what means you do this (e.g., national legislation, regulation, policy, etc.). [GP 1, 24, 53]

Details

As a matter of U.S. law and policy, an “inherently governmental function” (IG function) cannot be contracted out. The Federal Activities Inventory Reform (FAIR) Act of 1998 defines an IG function as “a function so intimately related to the public interest as to require performance by Federal Government employees.” A number of U.S. statutory, regulatory, and agency provisions provide additional guidance regarding what constitutes an IG function and designate specific functions as IG or commercial.

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Under policy guidance applicable to all executive branch departments and agencies, … IG functions that may not be contracted out include the command of military forces, combat, security operations performed in direct support of combat as part of a larger integrated armed force, security that entails augmenting or reinforcing others that have become engaged in combat, and security operations performed in environments where, in the judgment of the responsible Federal official, there is significant potential for the security operations to evolve into combat. Where the U.S. military is present, the judgment of the military commander should be sought regarding the potential for the operations to evolve into combat.

Resources

Notes

  1. Private Military and Security Companies in the Digest of United States Practice in International Law

Resources

Notes

  1. Private Military and Security Companies in the Digest of United States Practice in International Law

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