Main Image Credit United Nations General Assembly Hall in the UN Headquarters. Courtesy of Basil D Soufi/Wikimedia Commons
Russian and UK-based specialists look at how a thriving but often troubling business sector could be better regulated.
Public understandings of private military and security companies (PMSCs) have been shaped by headlines like those following the 2006 Nisour Square massacre, where Blackwater personnel contracted by the US government killed 17 Iraqis and injured 20. More recently, in 2018, Western media reports have suggested that contracted fighters of Russian origin engaged in combat with US troops at a Syrian Democratic Forces base. The so-called Battle of Khasham resulted in the deaths of a disputed number of Russian citizens. While these cases may represent a small segment of the private military and security sector, that does not diminish their importance – these types of actions lead to the deaths of both combatants and civilians, exacerbate conflicts and have impact relations between countries.
An Evolving Sector
Since the early 2000s, the PMSC sector has changed dramatically. PMSCs themselves are quick to emphasise that involvement in contingency operations is a small segment of the sector. The now global PMSC industry offers a broad range of services to both the public and private sectors. Even the UN contracts PMSCs. While they may not be consistently involved in combat, PMSCs have transformed modern security and conflict.
Governments contract PMSCs to provide military training and logistics, protection details, intelligence services, border security, and to manage prisons and immigration detention centres. G4S, a British PMSC which employs over 500,000 people, is present in more than 90 countries. As the PMSC sector expands, it benefits from the increased securitisation of trends such migration; for PMSCs, perceptions of insecurity are good for business.
For the private sector, PMSCs provide on-site risk management and security technology. PMSCs’ business activities place them in an almost unique situation; they have the potential to harm or violate the human rights of the public and PMSC staff, and can impact national foreign policy, international relations and conflict environments.
Clearly, PMSCs have a significant role to play worldwide. But how might they be held accountable, and how can their activities be regulated?
Accountability and Regulation Approaches
Accountability requires not only an effective remedy when things go wrong, but also limitations and procedures that reduce the risk of wrongdoing and promote good conduct. Which accountability requirements are most appropriate for PMSCs depends upon the types of activities they undertake, who contracts them, and who experiences harm as a result of PMSC conduct.
PMSCs should be accountable not only to the clients who contract them, but also the publics of their country of origin, contracting government or authority, and country of operation. Where PMSCs are active in complex conflict situations – the effects of which have both national and international implications – it is both logical and imperative that PMSCs be accountable to the international community. This places the regulatory issues of transparency, good governance, answerability and remedy – all of which are aspects of accountability – at the forefront.
There are two models for the international regulation of PMSCs. The most widely used is founded on the Montreux Document (2008), which outlines the responsibilities of states, and the Code of Conduct for Private Security Service Providers (2010), which contains descriptions of voluntary standards for companies that can be audited and certified. This model contains legally non-binding self-regulation, an outline of best practices and aims to avoid malpractice. It is relatively soft and tolerant towards PMSCs and supported by many PMSCs, and by major states where PMSCs are used, registered or headquartered (up to 90% of all PMSCs are registered in a handful of countries; the list is headed by the USA and UK).
Alternatively, there is the Draft UN Convention on Regulating PMSCs Activities. It developed on the initiative of countries where foreign PMSCs operate, and is backed in the UN by several dozen states. The Draft UN Convention was officially circulated to all 193 UN Member States in 2011 and remains the focus of UN debates.
The Draft UN Convention proposes a comprehensive and legally-binding system of oversight and regulation for PMSCs, which requires legal and procedural means on international, regional and national levels. To ensure compliance with human rights and international humanitarian law, the Convention would forbid PMSCs from participating in activities aimed at overthrowing legitimate governments or authorities, violent change of internationally recognised borders, or taking violent foreign control over natural resources. It would place restraints on PMSCs’ overuse of weapons and prohibit their access to weapons of mass destruction, or weapons capable of producing mass casualties and excessive destruction. Accordingly, the Convention would mandate legal mechanisms for acquiring, exporting, importing, possessing, and using weapons by PMSCs and their employees in the countries of operation, and guarantee only adequate, mandated, and proportional use of force by PMSCs.
With the aim of ensuring the accountability of PMSCs before the governments of both the country of registration and country of operations, as well as full respect for national laws, the Convention requires the creation of mechanisms for the detailed registration of PMSCs, the licensing of PMSC contracts and operations abroad and the individual licensing of their personnel, the monitoring of PMSC activities and the investigation of allegations of wrongdoing, and – in cases of revealed violations – the implementation of national and/or international sanctions.
In principle, the outsourcing and export of military and security services by PMSCs should be considered comparable to the export of arms or military equipment, and governments might be required by the UN to report regularly on PMSC contracts over a certain size for both outgoing and incoming military and security services.
While these two forms of PMSC regulation are often considered to be competing, they could be complementary – with a legally-binding UN Convention being bolstered and operationalised by industry standards and vice versa. Mutually reinforcing laws and regulations are commonly deployed across a range of sectors as a multifaceted approach that promotes businesses’ good behaviour and improved accountability to governments and publics. Networks of laws and regulations at the international and national levels are already used to control the export of arms.
The basic change required of the international community’s approach to PMSCs is the following: to move from perceiving them as ‘business as usual’ exports under commercial regulations towards perceiving them as highly specific exports and services requiring supervision and constant oversight on behalf of national governments, civil society and the international community, led by the UN. Both national governments and the UN must have more concern and responsibility for what PMSCs do, and when, where, and how PMSCs operate worldwide.
Professor Alexander Nikitin is Director of the Moscow State Institute of International Relations’ Centre for Euro-Atlantic Security.
Fletch Williams worked in international diplomacy and is completing a PhD at the London School of Economics, Department of Law, on the legal accountability of private military companies.
The views expressed in this Commentary are the author's, and do not represent those of RUSI or any other institution.