Private Military Security Companies
Case prepared by Ms. Margherita D’Ascanio, LL.M., student at the Geneva Academy of International Humanitarian Law and Human Rights, under the supervision of Professor Marco Sassòli and Ms. Yvette Issar, research assistant, both at the University of Geneva.
N.B. As per the disclaimer, neither the ICRC nor the authors can be identified with the opinions expressed in the Cases and Documents. Some cases even come to solutions that clearly violate IHL. They are nevertheless worthy of discussion, if only to raise a challenge to display more humanity in armed conflicts. Similarly, in some of the texts used in the case studies, the facts may not always be proven; nevertheless, they have been selected because they highlight interesting IHL issues and are thus published for didactic purposes.
A. Blackwater incident: What happened
[Source: ‘Blackwater incident: What happened’, BBC news, 8 December 2008, available at http://news.bbc.co.uk/2/hi/7033332.stm]
 The Iraqi government has accused Blackwater security guards of killing […] civilians on the morning of 16 September 2007, while they were escorting an American diplomatic envoy in Baghdad.
 The company said the civilians were killed during a shootout after one of their convoys came under attack in Nisoor Square, in an affluent neighbourhood of the capital. They said the guards reacted lawfully to gunfire deliberately aimed at them.
 The [Iraqi] government, which has called for the Blackwater guards to face prosecution, welcomed news that five guards had been indicted in the US in December 2008.
 One of the most detailed accounts of the events according to Blackwater employees comes from an initial report by the US embassy. […]
 It was described as a "spot report" and not intended to be authoritative. It was dated the day of the attacks.
 According to those accounts, Blackwater teams encountered a car bomb, a shootout and a standoff between Blackwater guards and Iraqi security forces. Each Blackwater team usually consists of three or four armoured vehicles.
 The report said the incident began when a car bomb exploded at 11.53 near a financial compound in Baghdad, while a US official was visiting. It also said:
Two Blackwater teams transported the official back to the fortified Green Zone
Another Blackwater unit was dispatched to the scene of the car bomb to deal with the aftermath of the blast.
This unit, however, was then ambushed and "engaged with small arms fire" from "multiple nearby locations" in Nisoor Square.
One of the Blackwater teams that had transported the official back to the Green Zone was re-dispatched to help out in Nisoor Square.
The re-deployed unit found itself stuck at an intersection in Nisoor Square and was confronted by Iraqi police and army. A US forces quick reaction team was sent to help rescue the unit.
 Separately, The Washington Post quoted a US official familiar with the investigation as saying that at least one Blackwater guard drew a weapon on his colleagues and shouted at him to "stop shooting".
Nisoor Square, Baghdad
 The incident took place when Nisoor Square was busy with traffic.
 Accounts of what happened to the first Blackwater unit to enter Nisoor Square have differed.
 Iraqi eyewitnesses have said that guards moved into the roundabout stopping the traffic. They then fired on a white sedan that had failed to slow down. According to those accounts, the car burst into flames killing the occupants. One eyewitness said Blackwater operatives had fired a rocket or grenade into the car.
 Those eyewitnesses say Blackwater guards then fired without provocation into the surrounding area as civilians and Iraqi officers tried to flee. They say the officers did not return the fire.
 Also in September 2007, an ABC news report quoted what it said were sworn statements from Blackwater employees. A number of those said that they had fired on the white car after it failed to slow down despite hand and arm signals.
 Another guard said he returned fire at Iraqis dressed as civilians.
 Eleven Iraqis were initially believed to have died in the incident, but a further Iraqi government investigation said a total of 17 people had been killed.
B. International Code of Conduct for Private Security Service Providers
[Source: International Code of Conduct for Private Security Service Providers, Swiss Confederation, 9 November 2010, available at: http://www.admin.ch/br/aktuell/00091/index.html?lang=en&msg-id=36144]
5. The purpose of this Code is to set forth a commonly-agreed set of principles for PSCs and to establish a foundation to translate those principles into related standards […].
6. Signatory Companies commit to the following, as set forth in this Code:
a) to operate in accordance with this Code;
b) to operate in accordance with applicable laws and regulations, and in accordance with relevant corporate standards of business conduct;
c) to operate in a manner that recognizes and supports the rule of law; respects human rights, and protects the interests of their clients;
d) 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;
e) to provide a means for responding to and resolving allegations of activity that violates any applicable national or international law or this Code; and
f) 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.
7. Those establishing this Code recognize that this Code acts as a founding instrument for a broader initiative to create better governance, compliance and accountability. Recognizing that further effort is necessary to implement effectively the principles of this Code, Signatory Companies accordingly commit to work with states, other Signatory Companies, Clients and other relevant stakeholders after initial endorsement of this Code to, within 18 months:
a) Establish objective and measurable standards for providing Security Services based upon this Code […]; and
b) Establish external independent mechanisms for effective governance and oversight, which will include Certification of Signatory Companies’ compliance with the Code’s principles and the standards derived from the Code, beginning with adequate policies and procedures, Auditing and Monitoring of their work in the field, including Reporting, and execution of a mechanism to address alleged violations of the Code’s principles or the standards derived from the Code;
and thereafter to consider the development of additional principles and standards for related services […].
8. Signature of this Code is the first step in a process towards full compliance. Signatory Companies need to: (1) establish and/or demonstrate internal processes to meet the requirements of the Code’s principles and the standards derived from the Code; and (2) once the governance and oversight mechanism is established, become certified by and submit to ongoing independent Auditing and verification by that mechanism. Signatory Companies undertake to be transparent regarding their progress towards implementing the Code’s principles and the standards derived from the Code. […]
9. In recognition of the additional steps to be taken to support the Implementation of this Code – in particular the development of standards based on the Code […] and an independent governance and oversight mechanism […] – Signatory Companies intend to, along with other interested stakeholders, convene regularly to review progress toward those steps.
11. Upon signature of the Code, Signatory Companies and other stakeholders will appoint a multi-stakeholder steering committee of 6-9 members who will function as a “temporary board”. This steering committee will be responsible for developing and documenting the initial arrangements for the independent governance and oversight mechanism [...].
12. After the independent governance and oversight mechanism has been constituted (by the adoption of bylaws/charter), the governance and oversight mechanism shall accept responsibility for maintenance and administration of the Code […].
D. GENERAL PROVISIONS
14. This Code complements and does not replace the control exercised by Competent Authorities, and does not limit or alter applicable international law or relevant national law. […] Nothing in this Code shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law.
15. This Code may be modified in accordance with procedures to be established by the governance and oversight mechanism.
E. GENERAL COMMITMENTS
18. Signatory Companies will make compliance with this Code an integral part of contractual agreements with Personnel and subcontractors or other parties carrying out Security Services under their contracts.
19. Signatory Companies will adhere to this Code, even when the Code is not included in a contractual agreement with a Client.
20. Signatory Companies will not knowingly enter into contracts where performance would directly and materially conflict with the principles of this Code, applicable national or international law, or applicable local, regional and international human rights law, and are not excused by any contractual obligation from complying with this Code. To the maximum extent possible, Signatory Companies will interpret and perform contracts in a manner that is consistent with this Code.
21. Signatory Companies will comply, and will require their Personnel to comply, with applicable law which may include international humanitarian law, and human rights law as imposed upon them by applicable national law, as well as all other applicable international and national law. Signatory Companies will exercise due diligence to ensure compliance with the law and with the principles contained in this Code […].
22. Signatory Companies agree not to contract with, support or service any government, person, or entity in a manner that would be contrary to United Nations Security Council sanctions. Signatory Companies will not, and will require that their Personnel do not, participate in, encourage, or seek to benefit from any national or international crimes […].
24. Signatory Companies will report, and will require their Personnel to report, known or reasonable suspicion of the commission of any of the acts identified in paragraph 22 of this Code to the Client and one or more of the following: the Competent Authorities in the country where the act took place, the country of nationality of the victim, or the country of nationality of the perpetrator.
25. Signatory Companies will take reasonable steps to ensure that the goods and services they provide are not used to violate human rights law or international humanitarian law, and such goods and services are not derived from such violations.
26. Signatory Companies will not, and will require that their Personnel do not, consistent with applicable national and international law, promise, offer, or give to any public official, directly or indirectly, anything of value for the public official himself or herself or another person or entity, in order that the public official act or refrain from acting in the exercise of his or her official duties if such inducement is illegal. Signatory Companies will not […] solicit or accept, directly or indirectly, anything of value in exchange for not complying with national and international law and/or standards, or with the principles contained within this Code.
F. SPECIFIC PRINCIPLES REGARDING THE CONDUCT OF PERSONNEL
28. Signatory Companies will, and will require their Personnel to, treat all persons humanely and with respect for their dignity and privacy and will report any breach of this Code.
Rules for the Use of Force
29. Signatory Companies will adopt Rules for the Use of Force consistent with applicable law and the minimum requirements contained in the section on Use of Force in this Code and agree those rules with the Client.
Use of Force
30. Signatory Companies will require their Personnel to take all reasonable steps to avoid the use of force. If force is used, it shall be in a manner consistent with applicable law. In no case shall the use of force exceed what is strictly necessary, and should be proportionate to the threat and appropriate to the situation.
31. Signatory Companies will require that their Personnel not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, or to prevent the perpetration of a particularly serious crime involving grave threat to life.
32. To the extent that Personnel are formally authorized to assist in the exercise of a state's law enforcement authority, Signatory Companies will require that their use of force or weapons will comply with all national and international obligations applicable to regular law enforcement officials of that state and, as a minimum, with the standards expressed in the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990).
33. Signatory Companies will only, and will require their Personnel will only, guard, transport, or question detainees if: (a) the Company has been specifically contracted to do so by a state; and (b) its Personnel are trained in the applicable national and international law. Signatory Companies will, and will require that their Personnel, treat all detained persons humanely and consistent with their status and protections under applicable human rights law or international humanitarian law, including in particular prohibitions on torture or other cruel, inhuman or degrading treatment or punishment.
37. Signatory Companies will, and will require that their Personnel, report any acts of torture or other cruel, inhuman or degrading treatment or punishment, known to them, or of which they have reasonable suspicion. Such reports will be made to the Client and one or more of the following: the competent authorities in the country where the acts took place, the country of nationality of the victim, or the country of nationality of the perpetrator.
Identification and Registering
43. Signatory Companies, to the extent consistent with reasonable security requirements and the safety of civilians, their Personnel and Clients, will:
a) require all Personnel to be individually identifiable whenever they are carrying out activities in discharge of their contractual responsibilities;
b) ensure that their vehicles are registered and licensed with the relevant national authorities whenever they are carrying out activities in discharge of their contractual responsibilities; and
c) will ensure that all hazardous materials are registered and licensed with the relevant national authorities.
G. SPECIFIC COMMITMENTS REGARDING MANAGEMENT AND GOVERNANCE
Incorporation of the Code into Company Policies
44. Signatory Companies will incorporate this Code into Company policies and internal control and compliance systems and integrate it into all relevant elements of their operations.
Selection and Vetting of Personnel
45. Signatory Companies will exercise due diligence in the selection of Personnel, including verifiable vetting and ongoing performance review of their Personnel. Signatory Companies will only hire individuals with the requisite qualifications as defined by the applicable contract, applicable national law and industry standards, and the principles contained in this Code.
46. Signatory Companies will not hire individuals under the age of 18 years to carry out Security Services.
48. Signatory Companies will establish and maintain internal policies and procedures to determine the suitability of applicants, or Personnel, to carry weapons as part of their duties. At a minimum, this will include checks that they have not:
a) been convicted of a crime that would indicate that the individual lacks the character and fitness to perform security services pursuant to the principles of this Code;
b) been dishonourably discharged;
c) had other employment or engagement contracts terminated for documented violations of one or more of the principles contained in this Code;
d) had a history of other conduct that, according to an objectively reasonable standard, brings into question their fitness to carry a weapon.
For the purposes of this paragraph, disqualifying crimes may include, but are not limited to, battery, murder, arson, fraud, rape, sexual abuse, organized crime, bribery, corruption, perjury, torture, kidnapping, drug trafficking or trafficking in persons. […]
Company Policies and Personnel Contracts
52. Signatory Companies will ensure that their policies on the nature and scope of services they provide, on hiring of Personnel and other relevant Personnel reference materials such as Personnel contracts include appropriate incorporation of this Code and relevant and applicable labour laws. Contract terms and conditions will be clearly communicated and available in a written form to all Personnel in a format and language that is accessible to them.
53. Signatory Companies will keep employment and service records and reports on all past and present personnel for a period of 7 (seven) years. Signatory Companies will require all Personnel to authorize the access to, and retention of, employment records and available Government records, except where prohibited by law. Such records will be made available to any compliance mechanism established pursuant to this Code or Competent Authority on request, except where prohibited by law.
Training of Personnel
55. Signatory Companies will ensure that all Personnel performing Security Services receive initial and recurrent professional training and are also fully aware of this Code and all applicable international and relevant national laws, including those pertaining to international human rights, international humanitarian law, international criminal law and other relevant criminal law. […]
63. Signatory Companies will prepare an incident report documenting any incident involving its Personnel that involves the use of any weapon, which includes the firing of weapons under any circumstance (except authorized training), any escalation of force, damage to equipment or injury to persons, attacks, criminal acts, traffic accidents, incidents involving other security forces, or such reporting as otherwise required by the Client, and will conduct an internal inquiry […].
Upon completion of the inquiry, the Signatory Company will produce in writing an incident report including the above information, copies of which will be provided to the Client and, to the extent required by law, to the Competent Authorities.
Safe and Healthy Working Environment
64. Signatory Companies will strive to provide a safe and healthy working environment, recognizing the possible inherent dangers and limitations presented by the local environment. Signatory Companies will ensure that reasonable precautions are taken to protect relevant staff in high-risk or life-threatening operations. These will include:
a) assessing risks of injury to Personnel as well as the risks to the local population generated by the activities of Signatory Companies and/or Personnel;
b) providing hostile environment training;
c) providing adequate protective equipment, appropriate weapons and ammunition, and medical support;
67. Signatory Companies will:
a) establish procedures for their Personnel and for third parties to report allegations of improper and/or illegal conduct to designated Personnel, including such acts or omissions that would violate the principles contained in this Code. Procedures must be fair, accessible and offer effective remedies, including recommendations for the prevention of recurrence. They shall also facilitate reporting by persons with reason to believe that improper or illegal conduct, or a violation of this Code, has occurred or is about to occur, of such conduct, to designated individuals within a Company and, where appropriate, to competent authorities;
b) publish details of their grievance mechanism on a publically accessible website;
c) investigate allegations promptly, impartially and with due consideration to confidentiality;
d) keep records about any such allegations, findings or disciplinary measures. Except where prohibited or protected by applicable law, such records should be made available to a Competent Authority on request;
e) cooperate with official investigations, and not participate in or tolerate from their Personnel, the impeding of witnesses, testimony or investigations;
f) take appropriate disciplinary action, which could include termination of employment in case of a finding of such violations or unlawful behaviour; and
g) ensure that their Personnel who report wrongdoings in good faith are provided protection against any retaliation for making such reports, such as shielding them from unwarranted or otherwise inappropriate disciplinary measures, and that matters raised are examined and acted upon without undue delay.
70. The Swiss Government will maintain a public list of Signatory Companies and convene an initial review conference with a view to reviewing the Code after governance and oversight mechanisms (as referenced in the Preamble and Section C “Implementation” to this Code) are developed.
C. International Code of Conduct for Private Security Service Providers’ Association, Articles of Association
[Source: International Code of Conduct for Private Security Service Providers’ Association, Articles of Association, Swiss Confederation, September 2013, available at https://www.icoca.ch/en/articles_of_association]
2.2 The purpose […] of the Association is to promote, govern and oversee implementation of the International Code of Conduct for Private Security Service Providers […].
3.1 Membership in the Association shall be divided into three membership categories reflecting stakeholder pillars: the Private Security Companies and Private Security Service Providers (collectively “PSCs”) pillar (hereinafter PSC pillar), the civil society organization (CSO) pillar, and the government pillar.
3.3 In determining membership requirements for each stakeholder pillar, the Board shall observe the following:
3.3.1 PSCs shall be eligible for membership upon certification […].
3.3.2 States and intergovernmental organizations that have communicated their support of the Montreux Document and who communicate their intent to support the principles of the ICoC and participate in the activities of the Association as specified in these Articles are eligible for membership. […] In becoming a Member, such States and intergovernmental organizations commit to provide information related to their implementation of the Montreux Document and the Code, including the development of their domestic regulatory framework for PSC activities, and to promote compliance with the ICoC in their contracting practices and policies.
3.3.3 Civil society Members shall be independent, non-profit organizations with a demonstrated institutional record at the local, national, or international level of the promotion and protection of human rights, international humanitarian law or the rule of law.[…]
6.4 The General Assembly shall […] have the power to approve decisions by the Board of Directors in the following areas before such decisions will enter into force:
6.4.1 Amendments to the Code;
6.4.2 Amendments to these Articles of Association;
6.4.3 Requirements for membership and observer status in the Association as well as withdrawal from the Association;
6.4.4 Establishment of membership dues;
6.4.6 Certification Procedures;
6.4.7 Reporting, Monitoring and Assessing Performance Procedures;
6.4.8 Complaints Process Procedures.
Board of Directors
7.1 The Board of Directors […] is the executive decision-making body of the Association. […]
7.2 The Board shall be composed of twelve Directors, with four seats allocated to each of the stakeholder pillars. Each Board Director shall be committed to the Purpose of the Association and shall fairly represent the views of the stakeholder pillar he or she represents. […]
7.6 Unless otherwise provided by these Articles, decisions of the Board shall be taken by a majority of eight Board Directors, which must include a minimum of two votes from Board Directors from each of the three stakeholder pillars.
11.1 The Association shall be responsible for certifying […] that a company’s systems and policies meet the Code’s principles and the standards […] and that a company is undergoing monitoring, auditing, and verification, including in the field.
11.2 The Board shall develop procedures for this Article based on the following elements and submit them to the General Assembly for approval:
11.2.1 The Board shall define the certification requirements based on national or international standards and processes that are recognized by the Board as consistent with the Code and specifying any additional information relevant to the human rights and humanitarian impact of operations it deems necessary for assessing whether a company's systems and policies meet the requirements of the Code and its readiness to participate in the Association;
11.2.2 Companies shall provide evidence of certification under a standard recognized by the Board and keep this certification current […];
11.3 Certification by the Association shall remain valid for a period of three years.
Reporting, Monitoring and Assessing Performance
12.1 The Association shall be responsible for exercising oversight of Member companies’ performance under the Code, including through external monitoring, reporting and a process to address alleged violations of the code.
12.2.1 Using established human rights methodologies, the Secretariat shall gather and receive information from public and other available sources on whether Member companies are operating in compliance with the Code.
12.2.2 Member companies shall provide to the Association a written assessment of their performance pursuant to a transparent set of criteria covered by necessary confidentiality and nondisclosure arrangements.
12.2.3 The Executive Director may initiate a field based review, unless the Board decides otherwise, (i) where the review of available information or a human rights risk assessment has identified a need for further monitoring within an area of one or more Member companies’ operations, or (ii) on request from a Member of the Association. […]
12.2.7 If the Board determines that corrective action is required to remedy non-compliance with the Code, the Board shall request a Member company take corrective action within a specific time period. Should a Member company fail to take reasonable corrective action […], or fail to act in good faith […], then the Board shall initiate suspension proceedings […].
12.2.9 The Board shall implement necessary confidentiality and nondisclosure arrangements related to its activities under this Article. Subject to these arrangements and following consultations with relevant parties, the Board may issue a public statement on the status or outcome of the Association’s review of a Member company.
13.2.1 The Secretariat shall receive complaints from individuals or their representatives, which must both (i) contain specific allegations of conduct that, if true, would constitute a violation of the Code, and (ii) allege harm to one or more of those individuals […].
13.2.2 After a complaint has been received […], the Secretariat shall inform the complainant […] of fair and accessible grievance procedures that may offer an effective remedy, including any such grievance procedure provided by a relevant Member company. The Secretariat may facilitate access to such grievance procedures, but shall remain neutral and shall not act in a representative capacity.
13.2.3 If a complainant alleges that a grievance procedure provided by a relevant Member company is not fair, not accessible, does not or cannot offer an effective remedy, or otherwise does not comply with paragraph 67 of the Code, the Secretariat shall review that allegation.
13.2.4 After conducting such a review, the Secretariat may offer observations to the Member company, the complainant and the Board and engage in dialogue with the Member company and the complainant to address how, if at all, the grievance procedure provided by the Member company does not comply with paragraph 67 of the Code and on the possible need for corrective action […].
13.2.5 After receiving the observations of the Secretariat, the Board may suggest that the complaint be referred to another, identified fair and accessible grievance procedure that may offer an effective remedy, and/or recommend that the Member company take corrective action […]. This may include cooperation with the Association’s good offices, the provision of a neutral and confidential mediation process, or other arrangements that may assist the Member company to offer an effective remedy […]. The Association shall not impose a specific award on the parties.
13.2.7 Member companies shall be expected to cooperate in good faith […]. If, after further consultation with the complainant and the Member company, the Board considers that the Member company has failed to take reasonable corrective action […], it shall take action, which may include suspension or termination of membership.
- Are PMSCs defined under IHL? May they be considered mercenaries? Under what conditions? Does the Code of Conduct prohibit PMSCs from hiring mercenaries as defined in P I, Art. 47?
- How would you qualify PMSCs: are they combatants or civilians who lose their protection if they directly participate in hostilities? Under what circumstances may they be considered combatants? Civilians who directly participate in hostilities?
- PMSC employees may undertake a great range of tasks. Do they enjoy the same or differing levels of protection under IHL according to their activities? Does the International Code of Conduct clarify these issues?
- (Document A, paras. 1 - 15)
- How would you qualify the Blackwater employees involved in the situation described? In using force to carry out their task to provide protection to a diplomatic envoy, were they acting in self-defence or were they directly participating in hostilities? [See Document, ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities]
- Were the Blackwater employees bound by IHL? Did they violate it? Why/Why not?
- (Document A, 1 – 15; Document B, paras. 29 – 33 and 64) In general, is there a higher risk of PMSC employees, rather than combatants, violating IHL? Why? To what extent does the International Code of Conduct provide useful guidance on this point?
- (Document B, paras. 29 – 32) According to the Code of Conduct, what legal regime regulates the use of force by PMSCs employees: human rights standards or IHL standards? Comparing the human rights and IHL standards, what is the difference between the two with respect to the use of force?
- (Document B, para. 33)
- In your opinion, why does the Code of Conduct require that Signatory Companies only guard, transport or question detainees if the Company has been specifically contracted to do so by a state?
- If PMSCs employees guard, transport or question detainees in an armed conflict, are they directly participating in hostilities? [See Document, ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities]
- (Document B, para. 67)
- Which State(s) would have the obligation and/or jurisdiction to prosecute violations of IHL committed by employees of PMSCs? Do the rules of international law generally coincide with what the Code of Conduct states in this respect?
- Can the international responsibility of a State be engaged when violations of IHL are committed by employees of a PMSC that it hired? Was the U.S. responsible in the case of the Blackwater incident? Why/Why not? More generally, is a State under a due diligence obligation to ensure that PMSCs it engages respect IHL? What is the legal basis, if any, for such an obligation?
- Is the responsibility of the State that hired the PMSC engaged for violations committed by employees of a company subcontracted by that PMSC? Would the PMSC be responsible? How does the Code of Conduct handle this issue?
- (Document B, paras. 9 – 12; Document C)
- What are the ICoC Articles of Association? How does this instrument intend to provide a mechanism of enforcement?
- What is the role played by civil society organizations? In your opinion, to what extent will they influence accountability?
- Who decides whether a PMSC has violated the Code?
- What are the advantages and disadvantages that under Art. 7.6 of Document C at least two directors representing PMSCs, governments and PMSCs must approve every decision of the Board?
- Can you make an assessment of the advantages/deficiencies of the Code of Conduct? Do you have any suggestions on how it could realistically be improved? What is your opinion of the implementation mechanisms it contains?