New Charter Outlines Concrete Steps to Implement the International Code of Conduct for Private Security Contractors

by Foley Hoag LLP - Corporate Social Responsibility
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The International Code of Conduct for Private Security Service Providers’ Association recently published its Charter. This marks a critical step in the establishment of oversight and governance processes to operationalize the commitments outlined in the International Code of Conduct for Private Security Providers (“ICoC”).

The ICoC is a multistakeholder initiative the aim of which is to establish principles and standards for the private security industry based on international human rights and humanitarian law. Under the Charter the Association is mandated with undertaking the steps necessary for certification, auditing, monitoring and reporting activities.

Commitments Under the ICOC

As of March 2013 more than 590 companies, from 70 different companies, had signed up to the ICoC. In becoming ICoC signatories, companies commit to the following:

  • to operate in accordance with the Code;
  • to operate in accordance with applicable laws and regulations, and in accordance with relevant corporate standards of business conduct;
  • to operate in a manner that recognizes and supports the rule of law; respects human rights, and protects the interests of their clients;
  • to take steps to establish and maintain an effective internal governance framework in order to deter, monitor, report, and effectively address adverse impacts on human rights;
  • to provide a means for responding to and resolving allegations of activity that violates any applicable national or international law or the Code; and
  • to cooperate in good faith with national and international authorities exercising proper jurisdiction, in particular with regard to national and international investigations of violations of national and international criminal law, of violations of international humanitarian law, or of human rights abuses.

By adopting the ICoC, signatory companies not only commit to the principles outlined in the Code, they also endorse the principles of 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 (“The Montreux Document”), as well as the “Respect, Protect, Remedy” framework developed by Professor John Ruggie, the former U.N. Special Representative on Business and Human Rights.

Purpose of the Charter and the ICoC Association

The purpose of the ICoC Association is “to promote, govern and oversee implementation of the [ICoC] and to promote the responsible provision of security services and respect for human rights and national and international law in accordance with the Code.” The Charter lays out concrete procedures by which meaningful regulation may be realized. The ICoC Association will have a General Assembly (which will meet at least once a year), a Board of Directors (the members of which have not yet been announced), and a Secretariat (operating under an Executive Director). An Advisory Forum of Montreux Document Participants will also be convened, to provide a resource to the Association.

Membership in the organization is open to the three “stakeholder pillars:” private security service providers, civil society organizations and governments. The specific requirements of membership for each group will be proposed by the Board, and approved by the General Assembly.

Certification of Compliance

The Association will be responsible for certifying that a signatory company’s systems and policies meet the principles and standards of the ICoC, and that the company is undertaking monitoring, auditing and verification processes (both at headquarters and in the field). Signatory companies will be expected to provide evidence of up-to-date certification under a standard recognized by the Board of Directors (this may be a national or international standard).

Reporting and Auditing

The Association will be responsible for overseeing signatory companies’ performance under the ICoC, including through external monitoring, reporting and a grievance process. The Secretariat will be responsible for gathering and receiving information (from both public and non-public sources) regarding signatory companies’ compliance with the ICoC, including written assessments from signatory companies themselves.

Both the Secretariat and the Board may offer observations and advice to, as well as engage with, signatory companies with the aim of improving performance or addressing specific compliance concerns. If the Board determines that in the context of non-compliance corrective action is necessary, the Board will request the signatory company to undertake such action.

The Association will report publicly, at least once a year, on its activities. It will also serve as a repository and promoter of industry best practices.

Complaints Procedure

The Association will oversee a fair and accessible grievance procedure, which offers effective remedies, to ensure that alleged violations of the ICoC are addressed. The Secretariat, together with the Board, will consider such claims, and after consultation with the signatory company may (1) suggest the complaint be referred to another grievance procedure for further consideration; or (2) recommend corrective action to be taken by the signatory company. In terms of follow-up, the Board may consider whether the signatory company (if deemed to have committed a violation of the ICoC) has taken sufficient corrective action. If a signatory company fails to do so, the Board may consider whether to suspend or terminate membership.

Relationship to U.S. Regulations

Federal statutes and regulations establish a framework for selection, training and accountability of private security contractors with whom the government contracts. The U.S. Department of Defense has also facilitated the development of quality management standards, recognized by the American National Standards Institute (see here and here). These standards govern the management and conduct of audit programs, address human rights considerations and provide a basis for entities to become certified to conduct audits of PSCs. It is likely that such a standard will be recognized by the Board for purposes of certification.

Though the U.S. government does not expressly require a PSC with whom it contracts to be a signatory to the ICoC, it “encourages companies to commit to the principles of the ICoC.” It will be interesting to see if U.S. rules and regulations are modified to include reference, explicit or otherwise, to the ICoC now that the Charter has been adopted and concrete steps are underway.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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