Contributor:  Richard de Silva
This February, Defence IQ will be assembling the coastal surveillance and maritime security community in Morocco for the 2014 AFSEC summit. To discuss the issues at hand is Dr. Ian Ralby, founder of the I.R. Consilium and expert in legal and policy advisory work and political negotiation, particularly in the field of maritime and national security law. As one of the world’s leading consultants on the global efforts to develop accountability and oversight for private security companies, he joined us to explain his part in developing the international code of conduct currently being implemented by many of those dealing with piracy in West Africa as we speak.
Dr. Ralby, what were the actual drivers behind the establishment of the International Code of Conduct Association and what fundamentals about this association do the international community really need to know?
I think the history behind it really goes back to Iraq and an incident that happened in 2004, which can really be looked at as perhaps the starting point for all of this. The world was pretty much shocked by the images of burnt corpses of American contractors that were broadcast on the 1st of April of that year. Both because the public didn’t really understand what this industry was and they had no idea that there were private contractors operating in the conflict zones in Iraq and Afghanistan.
Subsequent to that, there was a large outcry for accountability and oversight for the private security industry and in response to that, the Swiss government and specifically the international law division of the Swiss foreign ministry, as well as the ICRC, teamed up to launch a process in 2006 that ultimately led to a document called the Montreux document. Signed initially by 17 states, and now by 46 states and the European Union at large, that restates international legal obligations and a number of best practices for states in their interaction with private security industry. In 2008 this document came out and everybody realised that there was something really missing, which was something further to address the private security industry itself.
So, beginning in 2009, the Swiss government again convened a process, this time out of the human rights wing of the Swiss foreign ministry, to develop an international code of conduct. That process was concluded on the 9th of November of 2010, when an initial 58 companies ‚Äì and by now, I believe, 706 companies ‚Äì signed on to a voluntary code of conduct that provides principles for the operation of the private security industry in line with both international humanitarian law and international human rights principles. And part of the code of conduct’s commitment was for the industry to work with clients, governments, other signatory companies and other interested stakeholders including civil society organisations to develop a functional system of oversight for the code of conduct and standards that would be forthcoming and springing out of those principles articulated in the code.
The standards were actually drafted by ASIS International in a multi-stakeholder process involving the industry itself, governments, clients of private security companies and other interested professionals, both experts, lawyers, academics and those with a general interest whether they be human rights groups or trade associations or humanitarian organisations. So, the standards came online in 2012 and are now in the process of being implemented and the initial pilots for accreditation are underway. Now, through all of this, the focus remained primarily on land. And an unexpected development was that of those 706 companies that signed the International Code of Conduct, the majority, or very near to it, were exclusively focused on maritime security.
And so, the boom in the maritime security industry sort of awoke everyone to the reality that they needed to do something a bit more to focus on that particular side of the industry, which is actually quite different than the industry that operates on land. The differences are that the clients are primarily commercial rather than governments. They are more, in some ways, a subset of the maritime industry than they are a subset of the security industry, although they are certainly in both camps. And that because the drivers were mostly commercial, things could move a lot faster.
Things then went off in a slightly different direction and the standards for the private maritime security industry were developed as an industry initiative rather than a government-funded or government-focused initiative. A slight divergence there. There are now some really challenging outstanding questions regarding how this International Code of Conduct Association will treat the private maritime security industry as compared to the private land-based security industry. But certainly something that I know will be a major focus, as so many of the signatories right now are focused on providing maritime security, both in the Gulf of Aden and increasingly in the Gulf of Guinea.
You mentioned that this is voluntary. First of all, at what stage will that perhaps in the future become non-voluntary or legally obligatory, if at all? On top of that, being that it is voluntary at present, the two sides of the coin is what does it offer for signatories and, equally as importantly, what does it demand?
Yes, I think there are several areas where the code traipses between being voluntary and actually having some real teeth. Substantively, the code principles translate international human rights standards and requirements to the private security industry. And that’s significant because the laws on which they are based are actually focused on states. So these are obligations incumbent on states themselves, not on companies or individuals, and yet the industry is voluntarily saying, we will, nevertheless, adhere to these even though according to law they wouldn’t necessarily apply to us.
That’s really important given that the industry is working in areas where the rule of law is often broken down and when we’re talking about the high seas, there’s obviously a different legal regime altogether. So, it’s a very good voluntary, but where it comes in as having a bit more teeth lies actually on the client side. It’s when governments in their procurement processes and companies in their selection processes start mandating both signature of the code of conduct, compliance with the standards and now I think eventually membership in and certification by this newly formed association, that it will essentially become a legal requirement, inadvertently in some ways.
In that any company or government that hires a private security company that isn’t a signatory to the Code of Conduct, certified under the standards and certified by a member of the association, will be presumed negligent in their hiring process. So, when something goes wrong, rather than asking what exactly happened, the first question will be ‚Äòwas the company involved certified?‚Äô And if it is a yes, then the focus is on what actually happened. If it’s a no, the focus is actually on the client and why the heck they were hiring them in the first place. So that’s where it kind of becomes a legal requirement of sorts.
In terms of the obligations and commitments, there were really two and a half commitments that were firm. One was the development of standards, and as I said, those have already come online. The second was the development of mechanism of oversight, and this association, while singular rather than plural, given that it was mechanisms, I think will meet that requirement. And the half obligation was to, once those two first elements were done, to start focusing on other areas of related industries. So, the three that are specified in the code are maritime security, which is already now a major part of what’s going on, detention operations and training of third party forces.
That‚Äôs where I think we’ll start seeing more attention in the near future. I think that in terms of what it offers, it offers some really useful guidance to companies. The challenge for these businesses is that it’s not that they are operating without any law, it’s that they’re operating in a very ambiguous area of law. There’s a lot of twilight surrounding the legal application of international laws and national laws to the businesses operating trans-nationally in countries where the rule of law has broken down. It is not clear where their legal responsibilities and liabilities are.
And so the code starts providing some of the needed guidance for understanding exactly how they should operate and what their operations should look like. I think it is actually very useful on that front and I think the standards do a great deal of work to provide much more structured guidance based on the code. Now there’s a framework, sort of an acceptable area of operation, if you will. I think it’s very, very helpful, even for just understanding what areas need to be addressed.
As you mentioned, in the move from land to maritime, it would seem to follow that trend from when we were concerned as a public in reaction to some of the situations in Afghanistan and now, obviously, looking at the coast of Somalia, and so on. There is, I would say, still a perception that private security companies have this reputation of being a bit of a motley crew. Is that a perception that can be overturned? Is it damaging in any way? Or is it just something that you see initiatives like this will eventually remedy?
Well, it will never completely remedy it. I mean, I think the public tends to react very strongly against private actors who in any way misbehave or are involved in anything that seems dubious, especially with regards to human rights violations. And I think rightly so. The problem is that the industry will always be somewhat tarnished by what’s already happened, and no matter how much work they do, that’s going to be a difficult thing to overcome.
Everyone will mention Nisour Square, everyone will talk about, in the maritime side, the Enrica Lexie case where actually Italian naval personnel seconded to a commercial vessel as a vessel protection detail were involved in a shooting incident off of India. And I think those sorts of incidents, even though that wasn’t a private security incident, nevertheless leave a mark on people’s image and feeling towards private security. The thing is, the more well regulated the industry is, the more it can actually be a useful and very productive industry.
Humanitarian organisations, for example, are huge users of private security because it’s often safer and also more sensible for them to be with a non-state-affiliated security detail rather than with the military wearing their uniforms and all the baggage and expectations that come with that. So it’s an interesting dynamic. I think the industry’s quite young. It is changing rapidly, as you say, and
I think there’s a lot of change yet to come, but having these sorts of accountability measures in place, even though they aren’t as robust as many would like, start setting the framework for what already is and could be an even more useful industry as militaries continue to downsize and the nature of security changes throughout the world.
Well, on the topic of creating a framework and perhaps offsetting some of those particular challenges as militaries find them, we have, of course, the AFSEC summit coming up in February, of which you’re aware. In your opinion, what subject matter do you think should really be sort of under the lens, so to speak? What should really be discussed, and is there any specific question perhaps that you would like to hear answered from this community on a global scale?
There are quite a few challenges that need to be addressed, and the problem is it’s really hard to divorce each of them. One of the things that I would really like to see is not segmenting out some of the security issues and saying, this is an X issue or a Y issue, but looking at the full scope of it. So, for example, some of the security challenges that we’re seeing particularly in the Gulf of Guinea are so closely tied to corruption, at the same time so closely tied to economic development and community needs at a very local level.
If you try and address any one of those issues and throw in the oil industry, throw in fisheries, throw in rule of law issues, without discussing all of the issues comprehensively I think you run the risk of focusing too much on just part of the problem and not actually being able to do anything about it for lack of a broader picture. So, I definitely encourage a multi-disciplinary approach to dealing with the issues because they are quite complex, and there is very much an economic development component to all of them, and I think that really needs to be kept in mind. A lot of the African security related issues are born of economic opportunism and quite understandably so. Anytime security is discussed, you also have to discuss quite a few other issues at once.
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