Academic journal article Emory Law Journal

Regulating the Privatized Security Industry: The Promise of Public/private Governance

Academic journal article Emory Law Journal

Regulating the Privatized Security Industry: The Promise of Public/private Governance

Article excerpt

As governments around the world increasingly turn to contractors to provide government services in the sphere of military and foreign affairs, significant problems of accountability arise. Traditional public governmental mechanisms of regulation and accountability, as well as accountability through litigation, are often inadequate or unavailable. International legal instruments similarly offer only minimal enforcement of human rights or other public- regarding norms, and in any event they may not always apply to nonstate actors. As a result, we must find new forms of public/private governance and oversight in this rapidly expanding area of military and quasi-military operations.

The widespread role of contractors in the wars in Afghanistan and Iraq highlights these challenges.1 At many times during these conflicts, the ratio of contractors to troops hovered around one to one, reflecting a huge shift in the way the U.S. government projects its power overseas.2 As the Commission for Wartime Contracting has documented, the U.S. government increased the use of contractors at the same time that it radically reduced the number of contracting oversight personnel, weakening the kind of managerial oversight that can help prevent abuses.3 Although many contractors performed their jobs admirably-and indeed many gave their lives in what is a generally untold story of sacrifice during these wars-when some did commit abuses there were very few workable accountability mechanisms on the back end.4 The debarment system5 is notoriously ineffectual,6 and criminal cases have often stalled due to botched evidence-gathering, jurisdictional gaps, and other problems.7

In my own work, I have long argued that, to the extent that we care about ensuring that contractors respect core public values such as human rights, we should look toward new modes of accountability and constraint to protect those values.8 In particular, the human rights community has sometimes tended to focus on the creation of new treaties to address nongovernmental actors, or they have limited their vision to tackling governmental misconduct rather than misconduct by private contractors. While such efforts are tremendously important, I have suggested that there are other innovative accountability mechanisms that are equally (if not more) important, such as reforming the terms of the contracts themselves, developing codes of conduct, and building a variety of governmental and nongovernmental accreditation regimes.9

Now, we have a promising example pushing in some of these new directions. The human rights community, partnering with industry and government, has produced a voluntary International Code of Conduct for Private Security Service Providers (hereinafter "IC°C" or "the Code"),10 along with a proposed governance and oversight mechanism in order to enforce the Code.11 Both the Code and oversight mechanism are the product of many years of dedicated work by what may seem to be an unlikely partnership of actors in a strikingly open and transparent process.12 The resulting mechanism has yet to take effect, but its parameters are sufficiently established that a preliminary evaluation is appropriate.13

In this Article, I first describe the development of both the Code and its accompanying oversight mechanism as well as some of the key features of this regime. Then, I evaluate the emerging regime and its potential to reflect and promote core public values. Such values include, substantively, the values of human dignity embedded in human rights and humanitarian law, as well as the procedural values of global administrative law: public participation, transparency, and accountability. And I will examine both the process by which this regime was created and the substantive terms and enforcement mechanism of the regime itself. In the end, although we will need to wait to see how this Code is ultimately implemented and enforced, I conclude that it holds a great deal of promise both as an accountability mechanism for private military contractors and as a model for future public/private accountability regimes. …

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