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Birthe Anders

There’s a new sheriff in town – but can he keep the peace?

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In this, the final post of the Private Military and Security Contractors Series, series editor Birthe Anders examines the current state of PMSC regulation, with special attention to the recently launched International Code of Conduct Association.
Strife Editors

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There’s a new sheriff in town – but can he keep the peace?
by Birthe Anders

One of the main concerns about Private Military and Security Companies (PMSCs) is that their employees carry weapons in volatile situations and are not as well regulated as state forces. While armed guarding is only one part of the industry it is arguably the one that raises the biggest concerns over the effective control of potentially deadly force. However, with the recent launch of the International Code of Conduct Association, PMSCs have never been as well-regulated as right now – but is this enough?

In September 2013, a new regulatory body for PMSCs was established: the International Code of Conduct for Private Security Service Providers Association (ICoCA). The ICoCA is a non-profit organisation based in Geneva and is supposed to certify companies and monitor their compliance with the Code of Conduct for Private Security Service Providers (ICoC). The code contains provisions on company management, governance and the conduct of personnel, including on the use of force.[1] As of early November, 708 companies had signed up.[2] Thus monitoring its implementation is no small task. While some commentators have welcomed the ICoCA [3] and others condemned it as a poor attempt to legitimise PMSC’s work,[4] overall the launch of the ICoCA has not generated much discussion so far. Why is this? It might be due to confusion and uncertainty if this is an achievement worth celebrating. Even for long-standing followers of PMSC regulation efforts it is not yet clear what effect the ICoCA will have.

Recently Anton Katz, chair of the UN Working Group on Mercenaries warned of regulatory gaps created by differing national regulations that could lead to human rights violations.[5] The Montreux Document[6] and the ICoC were valuable, but they were not enough as ‘these initiatives are not legally binding and cannot be considered as complete solutions for the problems concerning PMSCs’.[7] While it is always good keep an ideal situation in mind (i.e. a legally-binding, international convention on PMSCs’ rights and obligations especially in war zones complemented by national legislation, all of them well-monitored and enforced of course), it is worth examining what we have right now. While not the same as a law, the ICoCA will monitor compliance with the ICoC for those PMSCs that signed up to it. So what we have right now is for the first time an oversight mechanism that is supported by companies, governments and advocacy groups at the same time.

For anyone not familiar with PMSC regulation, a brief overview is in order. In a nutshell, many laws and regulations apply to PMSCs and their employees, but few were specifically created for them. This can be problematic as even the best laws need monitoring and enforcement – inherently difficult in many contexts PMSCs operate in. On the national level, few states have addressed the issue. Exceptions are South Africa, the US and most recently Switzerland. On the international level, the UN Working Group on Mercenaries has published a Possible Draft Convention on PMSCs,[8] while the most prominent efforts are those initiated by the Swiss government: the Montreux process and the ICoC. The Montreux Document is aimed at states and (in a legally non-binding way) signatories acknowledge their obligations under human rights and international humanitarian law. In contrast, the ICoC is directed at companies. A central aspect of PMSCs regulation is its implementation. Nullo actore nullus iudex – if no one brings a claim forward there will be no investigation. Whithout adequate oversight AND enforcement, the best regulation is useless.[9] This brings us back to the ICoCA.

Once it is up and running, companies that signed up to the ICoC can – among other things – expect to have their performance monitored by the ICoCA. As one observer commented, the Association will institutionalize ‘the relationship between stakeholders’ as well as ensure ‘that PMSCs that sign on the ICoC actually conduct themselves accordingly’.[10] This has a lot to do with money. If the Association is not properly funded, oversight tools such as field visits will not take place. Companies pay according to their size, with small companies paying US$ 2.500, medium companies US$ 5000 and big companies US$ 9000 in the first year of membership, which increases slightly in the following year.[11] One member of the Steering Committee stepped down in summer 2013. Among his criticisms was company dues being set too low to allow the association to carry out independent monitoring of company behaviour. However, both the UK and the US have welcomed the ICoCA. The State Department might incorporate ICOCA as requirement into the bidding process (as well as to the ANSI-PSC 1 standard),[12] while the UK has announced that a national certification system will be created to measure companies’ implementation of the ICOC.[13] These announcements are significant as both countries are important PMSC clients.

Industry representatives were – together with government and civil society representatives – involved in the creation of the ICoCA, yet it goes beyond previous attempts at industry self-regulation. That is a big step. Arguably, we can now only judge the ICoCA by what’s on paper. The Association is currently looking for an executive director,[14] so it will be some time before it is up and running. How robust its monitoring and complaints procedures are remains to be seen when first cases of misconduct are reported. We all remember that Blackwater simply withdrew from the US industry association ISOA and its code of conduct in light of an impending misconduct investigation a few years ago.

So the answer to the introductory question depends on whether you are a glass half-full or half-empty kind of person. Yes, the success of the ICoCA remains to be seen. Yes, it applies only to companies that signed up to it and yes, it does not eliminate the need for individual states to regulate companies within their jurisdiction. It may be a small step, but it is a critical move towards a more comprehensive regulation of the industry, especially by differentiating between companies that committed to the ICoC and those that did not.

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NOTES

[1] For the full code see http://www.icoc-psp.org/uploads/INTERNATIONAL_CODE_OF_CONDUCT_Final_without_Company_Names.pdf.
[2] For an overview of where signatory companies are headquartered, see http://www.icoc-psp.org/Home_Page.html. With 208 the UK is the country with the most signatory companies.
[3] Human Rights First, http://www.humanrightsfirst.org/2013/09/18/icoca-launch-marks-significant-step-to-improve-private-security-contractor-oversight/.
[4] War on Want, http://www.waronwant.org/news/press-releases/17987-charity-slams-conduct-code-for-private-military-and-security-companies.
[5] UN Press Relase, 13 September 2013: http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13729&LangID=E.
[6] Available at http://www.icrc.org/eng/assets/files/other/icrc_002_0996.pdf.
[7] UN Press Release, 4 November 2013: http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13940&LangID=E.
[8] Available at http://psm.du.edu/media/documents/international_regulation/united_nations/human_rights_council_and_ga/open_ended_wg/session_1/un_open_ended_wg_session_1_draft-of-a-possible-convention.pdf.
[9] For those interested in further reading, information about PMSC regulation is as good as never before, largely due to the Private Security Monitor, a project of the University of Denver in association with DCAF. It provides an extensive, annotated library of national and international laws, conventions and other instruments somehow related to the regulation of PMSCs. This includes a detailed list of national regulation for PMSCs for most countries around the world. Having said that, hardly any country has laws specifically applying to PMSCs. Instead, laws focus on domestic security provision, mercenaries or the enlistment of a country’s citizens in foreign armed forces. http://psm.du.edu/.
[10] http://psm.du.edu/commentary/index.html.
[11] http://www.icoc-psp.org/uploads/ICOCA_Draft_Financing_Model.pdf.
[12] http://www.state.gov/r/pa/prs/ps/2013/08/213212.htm. For the ANSI-PSC standards see http://psm.du.edu/industry_initiatives/asis_international.html.
[13] https://www.gov.uk/government/speeches/international-code-of-conduct-for-private-security-providers-association.
[14] If you have seven or more years of work experience in the private security sector along with a number of other skills you can apply until 18th November. http://www.icoc-psp.org/uploads/ICoCA_Executive_Director.pdf.

Why becoming a Private Security Contractor cannot be explained by motivation

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In the third instalment of the Private Contractor Series, the focus is on individual contractors. Alison Hawks argues that the money motive is not a sufficient explanation as to why individuals become security contractors – as is often assumed by critics of the industry.

Birthe Anders

PMSCs Series Editor

Why becoming a Private Security Contractor cannot be explained by motivation

by Alison Hawks

Motive is often used in an effort to explain who an individual is and why they do what they do. Private security contractors have not been immune to this application, and popular discourse about the individual security contractor often revolves around what ‘motivates’ these individuals. The question is fair. The money is pretty good. But to understand individuals about whom little is known, working in an industry often described as opaque, the individual’s motivation gives little insight. This post will explore the ubiquitous explanation of ‘money motivator’ of military veterans-turned-private security contractors by looking at past studies and drawing on interviews.

Private security contractors are often mistook for ‘mercenaries.’ The Protocol Additional to the Geneva Conventions put forth six conditions, including the individual’s ‘motivation’, required for the ‘mercenary’ assignation. As Krahmann pointed out, it is not only problematic to prove all six conditions simultaneously, as is required by the Protocol, but proving an individual’s personal motivation virtually impossible in determining if they are a mercenary or not.[1] What is interesting is that motivation was included at all in the Protocol. Motive is not only difficult to prove, it is also somewhat useless in understanding a population of which little is known.

Most private security contractors in Iraq and Afghanistan are not Westerners, but either local nationals (LNs) or third country nationals (TCNs). Of those that are Western private security contractors, most have either prior military or law enforcement service, and most are men. They are the focus of this post. While many people assume these individuals are motivated by money, and even adventure, we do not really know what influences them to become contractors.

Security contractors do get paid well, for the length of their contract. As one security contractor pointed out to me during an interview, ‘there is no security in security.’[2] Security contracting is dependent on conflicts that by their circumstance create a market for outsourcing. It is not a one fits all approach. Making $150,000 for one year as a contractor does not equate to being an active duty soldier making $40,000 per year for 10, 15 or 20 years. Security contractors do not receive from their employer life insurance, long-term savings plans, housing, health insurance, or benefits extended to spouses or children.

Security contracting can also be adventurous. Yet, recent numbers show that security contractors are 4.5 times more likely to die than soldiers.[3] In fact, by 2010 more contractors had died than soldiers in Iraq and Afghanistan.[4] Like their armed forces counterparts security contractors have reported similar rates for posttraumatic stress disorder (PTSD), mild traumatic brain injury (mTBI), alcohol abuse, depression, suicidal ideation and suicide.[5] Further, they suffer disabilities as a result of their work like amputated limbs, blindness, and deafness among others as a result of being exposed to IEDs, ambushes, mortar attacks, kidnappings and incoming artillery fire.[6] When their contracts are over, unlike active duty service personnel or veterans, contractors have little recourse to address their mental or physical health and well-being.[7] Those contractors who are military veterans often encounter the bureaucratic snag that the government and public veteran service providers will often turn contractors away as they cannot prove their symptoms are something they incurred while serving in the armed forces, leaving the individual to advocate for themselves while trying to secure care for their issues.[8]

If we focus on Western private security contractors we know that the majority have served in their state’s military. Often, this experience is required for a job. Prior military experience situated with discourse on the individual’s ‘motive’ for becoming a security contractor is somewhat of a paradigm shift. For one, the individual’s serving in the military are not normally defined by economic motivation. Surveyed US enlistment propensities show that many individuals initially join the military in an effort of social mobility across four broad categories: institutional (desire to serve, be patriotic, be adventurous, be challenged, and be a soldier); future-oriented (desire for a military career and money for college); occupational (need to support family and best choice available; and pecuniary benefits (desire to repay college loans and receive bonus money).[9] A second study has show similar results and private gain did not top the list of why the individual stated they became a security contractor.[10] It is natural, as a result of compensation in the military, for the individual to be attracted to the earnings of a security contractor. But will this disparity in earnings explain who the individual is? Or why they decide to become a contractor? No. A look at what ‘motive’ is helps to understand why this is so.

Motives, as the sociologist C. Wright Mills wrote, are fluid and flexible, influenced by the individual’s environment. If the environment changes, Mills argues, the individual’s motives will as well. Inversely, if the environment remains unchanged, motive also remains unchanged.[11] He writes, motives ‘are words…they do not denote any elements ‘in’ individuals. They stand for anticipating situational consequences of questioned conduct.’[12] Meaning, motivation is contextual and rational. In contrast to intrinsic and extrinsic motivations in efforts to understand the individual, Mills examines motive by way of vocabulary. He writes ‘conversations may be concerned with the factual features of a situation as they are seen and believed to be or it may seek to integrate and promote a set of diverse social actions with reference to the situation and its normative patterns of expectations.’[13] The italics, emphasis not in the original, highlight the influence of institutions on situations and how they will subsequently engender a particular narrative constructing not only the individual’s motive but also what is expected by others for the individual’s motive to be. In regards to the above ‘money motivator’, the normative social construct existing today regarding security contractors restricts the individual to being driven solely by economic gain. For Mills, this explanation of money as a sole motive would be far too reductive in considering these individuals. Verbalizing ‘money’ as a motive is not copasetic to the military institution – the military institution is one that embeds, reinforces and nurtures the individual’s role in the Social Contract, emphasizing the service the individual provides. Motives, therefore, are an accepted part of understanding, but are not definitive. They can describe the effects of the individual’s environment, but will not necessarily describe the individual.

I argue that to understand military veterans-turned-private security contractors, two things are more important than motive alone. The first is the ‘environmental continuity’ security contracting provides by way of operational environment, language and similar experience of peers; and the experience the individual seeks by way of becoming a security contractor. These two things are better situated within military institutionalisation, and military – civilian transition, not motivation. While Western armed security contractors are a small group, they are an important population to understand. Motives generalise these individuals, often unfairly. I propose more inquiry into what influences the individual, when and where, to become security contractors and the attraction of the security contracting environment, as those will provide a pragmatism in scholarship that motives do not. After all one can be motivated to do something, and never do it. Shall we let that define these individuals carrying arms in high-risk environments? I should think not.

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NOTES
[1] Elke Krahmann, States, Citizens and the Privatisation of Security (Cambridge: Cambridge University Press, 2010), p. 6.
[2] A. Hawks, Interview (October 2013)
[3] Steven Schooner & Collin Swan, ‘Contractors and the Ultimate Sacrifice’, George Washington University Law School Public Law and Legal Theory Working Paper No. 512, Legal Studies Research Paper No. 512 available at: http://ssrn.com/abstract=1677506.
[4] Christian T. Miller, ‘This Year, Contractor Deaths Exceed Military Ones in Iraq and Afghanistan’, in ‘Disposable Army, Civilian Contractors in Iraq and Afghanistan’ (published September 23, 2010), available at: http://www.propublica.org/article/this-year-contractor-deaths-exceed-military-ones-in-iraq-afgh-100923 (last visited on 6 November 2013).
[5] Katy Messenger et al., ‘The Experiences of Security Industry Contractors Working in Iraq: An Interpretative Phenomenological Analysis’, JOEM, Vol. 54, No. 7 (July 2012), pp. 859-867; Anthony Feinstein & Maggie Botes, ‘Psychological Health of Contractors Working in War Zones’, Journal of Traumatic Stress, Vol. 22, No. 2 (April 2009), pp. 102-105, 102-103; Neil Greenberg, ‘The Mental Health of Security Contractors Cannot be Ignored’, The Huffington Post (January 10, 2012) available at: http:/ /www.huffingtonpost.co.uk/professor-neil-greenberg/danny-fitzsimmons-mental-health-g4s-b_1929016.html (last visited on 6 November 2013).
[6] See Table 1 in Messenger, ‘Experiences’, p. 861, where the following were ranked highest by contractor surveyed: ‘thought might be killed or seriously wounded’, ‘came under small arms fire’, ‘came under enemy sniper fire’, ‘saw UK/allied forces killed or wounded’, ‘discharged weapon at enemy’, ‘encountered hostile or aggressive reactions from civilians’ and ‘handled or uncovered human remains’; also, Kevin Powers, ‘A Soldier’s Story: Returning Home from Iraq’, Parade Magazine (October, 2012), available at: http://www.parade.com/news/2012/10/21-iraq-veteran-kevin-powers-interview-the-yellow-birds.html (last visited on 6 November 2013).
[7] John Nova Lomax, ‘Returning to War Contractors Face Second Battle, Against AIG’ Houston Press, (November 12, 2012).
[8] Ibid.
[9] Todd Woodruff, Ryan Kelty and David R. Segal ‘Propensity to Serve and Motivation to Enlist Among American Combat Soldiers’, Armed Forces & Society, Vol. 32, No. 3 (April 2006), Pp. 353-366, 360-361); and James Griffith, ‘Institutional Motives for Serving in the U.S. Army National Guard: Implications for Recruitment, Retention, and Readiness’, Armed Forces and Society, Vol. 43, No. 2 (January 2008), pp. 230-258, 231.
[10] Volker Franke and Marc von Boemcken’s results from their survey on prior US law enforcement personnel-turned-private security contractors are somewhat similar. The motives of the individuals surveyed ranked, from highest to lowest, as follows: to face and meet new challenges, to help others, to feel like my work makes a difference, to serve my country, and to make more money than in my previous job. See Volker Franke and Marc vom Boemcken ‘‘Guns for Hire’: Motivations and Attitudes of Private Security Contractors’ Armed Forces and Society, Vol. 37, No. 4 (October 2011), pp. 725-742.
[11] C. Wright Mills, ‘Situated Actions and Vocabularies’ (1940), p. 907.
[12] Ibid.
[13] Ibid.