THE BLOG
02/08/2011 04:46 pm ET | Updated May 25, 2011

The Weaknesses of PMSC Self-Regulation

Those of you who have followed my writings on this subject know that I am critical of largely industry advocated, self-regulation efforts, such as Codes of Conduct. It is not that such codes are bad, per se. Indeed, they may even, as other observers have pointed out in the past be useful, insofar as they help set global norms that all PMSC actors feel obliged to respect.

Rather, the problem I have with self regulation is that in order to make it really work some other things need to go along with it. The paper, "Regulating War: A Taxonomy in Global Administrative Law" by Daphné Richemond-Barak of the Interdisciplinary Center, Herzliya, Israel, published last September explains the deficiencies.

She examines the regulation of private warfare through the framework of Global Administrative Law ("GAL"). Note that GAL is actually sympathetic to industry efforts. "GAL's underlying idea is that while global governance operates along the same line as administration in general, the meaning of administration is different in the realm of global governance - it is not necessarily exclusively public; it is not exclusively national, and it tends not to be obligatory." Indeed, Ms. Richemond-Barak writes, "the potential of self-regulatory mechanisms is apparent from this study and must be noted at the outset."

But she also looks at various regulatory efforts. In regard to the question of whether industry associations in the realm of private security and military outsourcing can appropriately be regarded as exercising regulatory functions, she writes it is too early to classify industry associations as private bodies with regulatory functions.

Consider, for example, what she writes about the Code of Conduct of IPOA (renamed ISOA); one of the larger PMSC trade association.

Through IPOA's complaint mechanism, companies as well as individuals may submit a complaint to the association for alleged violations of the association's code of conduct. This complaint, which may remain anonymous if appropriately specified, must be filed in a set form to the Chief Liaison Officer of the Standards Committee, "who is an employee of IPOA and is not affiliated with any company." Of course IPOA may not consider complaints against companies that are not members of the association. When responding to a complaint, IPOA Standards Committee follows a Standards Compliance and Oversight Procedure. The Standards Compliance and Oversight Procedure provides that the monitoring/sanctioning will take place in four steps: (1) an administrative panel will look at the complaint and decide whether it is worthy of review; (2) a review panel will hear the complaint which will determine whether a violation of IPOA's code of conduct has occurred; (3) a compliance panel will suggest and impose remedies and monitor the compliance of the company subject of the complaint; and (4) a disciplinary panel which will provide a final ruling on expulsion. As "IPOA is not a law enforcement or judicial organization," it "will not attempt to prove the guilt or innocence of a member company in a criminal or civil legal case."

Although a unique three-level enforcement mechanism is contemplated, the only sanction envisaged by the association itself is the expulsion of noncompliant members. Expulsion alone sidesteps true accountability. While the model of industry-led accountability is attractive at the procedural level - it avoids the need for new monitoring/enforcement bodies; cost is borne by individual companies which ought to punish 'bad actors'; and there are no guarantees of non-repetition - it fails on the substantive level. It would be preferable for IPOA to play a role in reporting violations of international humanitarian and human rights law to relevant authorities, rather than leaving it to the companies. In any event, the expulsion of non-compliant members remains too limited a sanction.

As noted above Ms. Richemond-Barak is not unsympathetic to the idea of self-regulation. But while she applauds its achievements in standard-setting she is not blind to its weaknesses.

In addition to being disorderly and thus difficult to track, self-regulation often lacks the teeth necessary to attain its full potential. What is lacking, in other words, are the monitoring and - even more so - the sanctioning mechanisms needed to ensure compliance with the standards elaborated voluntarily by and within the industry.

...

The private military industry currently finds itself between the first and the second stage of this evolution toward self-regulation: it has succeeded in elaborating standards that can be applied industry-wide, but has yet to create robust monitoring mechanisms capable of enforcing these standards. Sanctioning is still at an embryonic stage. Under the vast majority of voluntary regulatory schemes, noncompliant contractors face only the termination of their employment contracts. Non-compliant companies may, theoretically, face expulsion from important industry associations; but such instances have not been documented. Only in rare cases does the self-regulation contemplate any type of real and effective sanctions - let alone the involvement of police or other law-enforcement authorities.