Commentary

It All Depends on What You Mean by Regulation

Perhaps I was too hasty when I previously wrote that “Contrary to popular wisdom most PMCs crave to comply with legal and regulatory standards.”

Bloomberg is reporting that “Security companies including ArmorGroup North America and DynCorp International Inc. are getting U.S. and British backing as they oppose international regulations the contractors say would boost costs and dangers.”

What these groups and their trade association, the Washington-based International Peace Operations Association (IPOA) specifically object to is a proposed United Nations treaty to set screening and training standards in an effort to avoid a repetition of alleged abuses by war zone guards.

This history of this is a bit complex so bear with me. The proposed treaty has been drafted by a UN working group, formally titled “The Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination.” The Working Group is part of the Office of the United Nations High Commissioner for Human Rights. OHCHR represents the world’s commitment to universal ideals of human dignity. Its mandate is to promote and protect all human rights.

That sounds all well and good. But some history is needed to fully understand why some people are suspicious of the Working Group. It was established in July 2005 pursuant to Commission on Human Rights resolution 2005/2. It succeeded the mandate of the Special Rapporteur on the use of mercenaries, which had been in existence since 1987 and was headed by Mr. Enrique Bernales Ballesteros (Peru) from 1987 to 2004 and Ms. Shaista Shameem (Fiji) from 2004 to 2005. In March 2008, the Human Rights Council extended the mandate of the Working Group for a period of three years.

Past heads of the Working Group have not been complimentary about private security contractors (PSC), which has made for some interesting irony. For example, Ballesteros once said that PSC are “corporate mercenaries” whose activities are criminal and “must be severely punished.” Yet at the time he said that the UN had previously hired PSC in the past. Several PSC, including the former Sandline International, founded by former British military officer Tim Spicer, who went on to found Aegis Defence, were registered with the UN Common Supply Database.

Now in the past, while the group has clearly never been a fan or private military and security contractors, it also acknowledged that PSCs were not mercenaries. It still does, if you dig down into the guts of their rhetoric. The group’s own news release acknowledges that private military and security companies are something different; not just a synonym for mercenaries.

In fact, in his last report as former UN Special Rapporteur on mercenaries, Ballesteros proposed a new, modern legal definition for mercenaries which:

(a) Considers the participation of mercenaries in international and internal armed conflicts and in concerted acts of violence against the right of self-determination of peoples; (b) It is not limited to the mercenary as an individual agent but includes mercenarism as a concept related to the responsibility of the State and other organizations and individuals; (c) Covers illicit acts such as trafficking in persons and migrants, arms and drug trafficking; terrorism; international organized crime; abduction, etc., as well as actions to destabilize legitimate governments and actions aimed at taking forcible control of valuable natural resources; (d) Extends responsibility to anyone who recruits, finances, employs or trains mercenaries.

Nevertheless, his proposal approaches mercenaries only from the criminal aspect and did not include, and is unfit for, modern PSCs. And in their 2009 report the Working Group noted:

The Working Group recognizes that whilst the Convention remains the only universal instrument dedicated to addressing mercenarism, many activities performed by private military and security companies under government contracts do not easily fall within the definition of “mercenary” as set out in the Convention.

When one looks at the academic literature on the subject one finds that the Working Group is less concerned about what a PSC might do in the future and more concerned about what it means for the already lackluster commitment of nations around the world to human rights. As more companies become involved, the working group fears that PSCs will endanger the states’ security obligations and the citizens’ guarantee to human rights.

To see some of the specifics of what bothers the Working Group about PSC see this presentation it made to Western European and Others Group Regional Consultation and Meetings held with other 4 Regional Groups of UN Human Rights Council, in Geneva this past April 14-16.

On April 9 the Working Group held its last meeting on the ongoing process towards the elaboration of a possible new international convention on the regulation of activities of Private Military and Security Companies (PMSCs).. It will submit its final report on the progress achieved in this draft legal instrument for consideration and action by the Human Rights Council, in September 2010.

As we don’t actually yet have a draft treaty to look at until September, we can only go on the basis of news releases, but some of what the Working Group proposes is not that controversial.

Acknowledging that a number of governments have indicated they favor self regulation (an approach favored by the United Kingdom, for example) and the adoption of an international code of conduct (meaning 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 rather than a new treaty, Gomez del Prado says the transnational character of the security industry requires an international framework of regulation.

By the way, one might think of the Montreux Document as an international version of the codes of conduct touted by IPOA and other trade associations. If you think those work well in terms of preventing illegal actions or doing something about them after they happen let’s just say you will want to see me about a bridge I have for sale in Brooklyn.

According to del Prado:

the proposed Convention would reaffirm the principle that States should retain the monopoly on the legitimate use of force which is increasingly being eroded. It would ban the outsourcing of inherent State functions, thus preventing companies directly taking part in hostilities or assuming police roles, including the interrogation of detainees.

This is hardly a novel sentiment. Numerous members of the U.S. Congress said the same thing, in far stronger terms, in the aftermath of the Abu Ghraib torture scandal.

The proposed UN Convention also requires States to lift all immunity agreements covering private military and security companies and their personnel and makes it clear that supervisors, such as government officials or company managers, may be liable for crimes under international law, committed by personnel under their authority and control.

That is hardly a deal killer. After all, U.S. PSC are still working in Iraq despite the lifting of their immunity following the taking of effect of the Status of Forces Agreement between Iraq and the Untied States.

To a degree, PSC seem to be channeling former President Bill Clinton; for them, it all depends on what you mean by regulation.

Nevertheless US PSC and IPOA prefer the Montreux Document, as well as legislation in the U.S. Congress such as this one sponsored by Rep. David Price (D-NC).

All of which is fine. Companies can support whatever approach they want. But IPOA might want to rethink who it chooses as poster boys for adopting a different regulatory approach.

Having ArmorGroup North America make the case against an international treaty regulating PSC is like the American Petroleum Institute picking BP to lead the charge for laxer regulation of the oil drilling industry.

For those who need reminding it was ArmorGroup to which countless numbers of comedians were indebted back in September 2009, thanks to the investigation by the Project on Government Oversight, which revealed the Animal House like rituals among the guards responsible for protecting the US Embassy in Kabul, Afghanistan, of drinking vodka shots off people’s posteriors, thus contributing to a pervasive breakdown in the chain of command and guard force discipline and morale. This led to a situation where protection of the U.S. Embassy there was “grossly deficient, posing a significant threat to the security of the Embassy and its personnel — and thereby to the diplomatic mission in Afghanistan.”

And DynCorp has had its own numerous problems in both Iraq and Afghanistan. See here and here, for example.

IPOA has 57 member companies. Surely, it can find at least one out of the remaining 55 members, with a better record, to help do its anti-UN treaty work.

June 18 UPDATE: The above post was written before Bloomberg issued a correction of its article.

This morning I received the following from the public affairs office at DynCorp International, one of the companies mentioned in the article. Although to date I have received nothing from ArmorGroup the following would apply to it as well.

Bloomberg’s original story was incorrect. We have not taken a position on the UN regulations (in fact, while we have not taken a position on the UN regulations specifically, we have been supportive of increased oversight and regulation) and Bloomberg never contacted me for their story. When they did contact the company — apparently more than a month and a half ago and prior to my joining — the spokesperson at the time declined comment but suggested they talk to the IPOA.

While I don’t want to get to nitpicky about it, and appreciate DynCorp alerting me to the correction, I think that most people believe that if a trade association speaks out on an issue it represents the views of its member companies. Since the article does not correct IPOA’s concerns about the treaty one can see how people might think that all its member companies share that view.

David Isenberg is an analyst in national and international security affairs and a US Navy veteran. He is also a member of the Coalition for a Realistic Foreign Policy, an adjunct scholar with the Cato Institute, and the author of a new book, Shadow Force: Private Security Contractors in Iraq.