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Challenges to the Rule of Law in Times of Crisis Series: Introduction

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The Supreme Court of the United Kingdom. Photo Credit: Shark Attacks, licensed with CC BY 2.0

There has been a great deal of academic interest in recent years regarding a ‘backlash’ against the liberal international order and, in particular, the rule of law. At the time, it resonated with the actions of the Trump Administration, for example in withdrawing from the 2015 Paris Agreement on climate change and the Iran nuclear deal. The focus was often on political, societal and cultural explanations for the backlash and there was less discussion of what was meant by the rule of law and how it related to the liberal international order. Beyond the withdrawal from international agreements, the inherent legal issues involved in the Trump Administration’s actions were often overlooked, for example in the reaction to the US cruise missile strikes on Syria following reports of the Syrian regime’s use of chemical weapons. The strikes were generally seen as an unlawful use of force although, for some, still a legitimate act rather than a violation of the rule of law. If an unlawful act does not violate the rule of law, does the rule of law have no meaning or is it so pliable that it effectively becomes meaningless?

Once we start to examine the meaning of the rule of law, we find that, as with many legal concepts, it is generally grounded in state-based models of law which are difficult to transfer to the international arena. For example, for Tom Bingham, the rule of law means ‘that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts’. This concept of the rule of law has within it some legal elements, such as legal personality and access to the courts, that are deeply embedded in municipal law but are different in the international legal system. ‘Legal personality’ is the term given to those who have legal rights and duties within a legal system and so there is an issue as to the extent to which actors within states, such as individuals and companies, who have legal personality can be equated to actors, such as states and international organizations, within the international legal system. Furthermore, unlike those with legal personality within a state who may be brought to account before the courts, states have to give their consent to the jurisdiction of the international courts before they may be subject to proceedings before them. Joseph Raz has a similar conception of the rule of law but thought that the essence of the rule of law is that, for law to be law, it must be capable of guiding behaviour, and conformity to the law is then required in order to secure whatever purposes the law is designed to achieve. For Raz, both law and the rule of law are instrumental. The law guides behaviour but, unlike the concept of natural law, is morally neutral as to the ends to which it is put. The rule of law is a virtue of the law as an instrument to achieve those ends, not a moral virtue that upholds other public goods. There is much that might be debated about this conception of the rule of law but it provides a starting point for it to be examined in a domestic or an international context, or both. In particular, it centres the concept on questions of whether the law is still guiding behaviour and whether the rule of law is securing its purposes in a satisfactory manner rather than on questions to do with the possession and effects of legal personality within the international legal system. It also helps to identify where the rule of law is being drawn into arguments over moral or political values that go beyond mere instrumentalization of the law itself.

In this series of articles by members of the Society, Culture and Law theme within the School of Security Studies at King’s, we look more closely at the rule of law and the contemporary challenges to it. By challenges to it, we mean, on the one hand, challenges in the sense of what is meant by it and what it comprises and, on the other, how it is applied and enforced. For example, we might agree (or not) that the methodology of the instrumentalism of the rule of law is useful for an understanding of international criminal law. Here the instrumentalism of the law, as seen in the Preamble to the 1998 Rome Statute of the International Criminal Court, is quite apparent: in particular it includes respect for and the upholding of international criminal law so as to hold accountable those responsible for mass atrocity crimes and to deter the commission of future crimes. There may be more difficulty with other areas of law such as international human rights law, international trade law or international refugee law where the challenges may be to explain how they fit into the conception of the rule of law or in how it is applied. Furthermore, issues of atrocity crimes, human rights, trade and asylum have in common that they are based on bodies of law and have been recognizable elements of the rule of law that have been established since the Second World War or even earlier, but what of other contemporary issues such as climate change or the impact of the COVID-19 pandemic, how do they fit into the concept of the rule of law?

In the first article of the series, “Peace in the Time of Pandemic 2: A Clash of Rights and Security”, Constance Wilhelm considers the impact that the COVID-19 pandemic and accompanying state securitization has had on the state of human rights and on social cohesion and resilience. She then highlights the challenges that societies may face if a more rights-based balance is not struck in such clashes of rights and security.

In the second article, “Australia and the quest for accountability after the Brereton Report: Some ethical and legal considerations”, Francisco Lobo considers the Brereton Report into alleged war crimes committed by Australian Special Forces in Afghanistan during more than a decade of enforcing the mandate of the international community to fight the global threat of terrorism as part of the International Security Assistance Force, including some ethical aspects and the potential for a prosecution of such crimes by the International Criminal Court.

In the series’ third article, “Prosecuting war crimes: Some thoughts for the new Prosecutor of the ICC”, David Bicknell considers some of the challenges to the application and enforcement of international criminal law. The challenges here are those facing the new Prosecutor at the International Criminal Court, Karim Khan QC, in the making of decisions on who to investigate and prosecute for war crimes which have highlighted by the wide-spread criticism of two recent decisions by the Court.

Finally, in the last installment of the series, “America strikes again: Some thoughts on Biden’s first military airstrike in Syria”, Francisco Lobo analyses the normative factors surrounding the first military strike on Syrian territory authorized by the incoming Biden administration, drawing on both legal considerations and the wider ethical framework of ‘jus ad vim’.

Justice Delayed is Justice Denied

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by Prachi Aryal

A Nepali man looks at photographs of disappeared persons displayed by human rights activists. Credits: Niranjan Shrestha

While Nepalese government representatives were addressing the Universal Periodic Review of Nepal’s Human Rights Records, Ganga Maya Adhikari began another hunger strike to demand justice for her son, Krishna Prasad Adhikari, who was killed during the Maoist conflict. Her son was kidnapped, tortured, and murdered by the Maoists in 2004. Adhikari has staged multiple hunger strikes since 2013, demanding the persecution of the perpetrators. Her husband, Nanda Prasad Adhikari died in 2014, succumbing, after 329 days, to his own hunger strike. His body remains in the mortuary, as the family has refused to perform last rites until justice has been served. The story of the Adhikari family is just one amongst the many thousands whose quest for justice has been quashed by a culture of impunity.

Nepal witnessed a decade long civil conflict from 1996-2006, fought between joint security forces and Maoist rebels. The period was marked by widespread human rights violations, including forced disappearances, extrajudicial killings, arrests, rapes, and torture, committed by both the warring parties. The conflict left over 15,000 dead and over 1,300 remain missing.

The Comprehensive Peace Accord (CPA), signed in 2006 to bring an end to the conflict, was a ray of hope for the victims, as it came with a promise of accountability and justice. The accord adopted a gradual approach of disarming and demobilizing the Maoist rebels whilst integrating some of them into the national army and political process. However, 15 years later, the CPA has failed to uphold its promises, with thousands of victims still struggling for justice.

Under the CPA, investigative commissions were established to uncover the truth about the human rights violations that occurred during the conflict. After years of delay, the process was formally started in 2014 with the introduction of the Transitional Justice Act, which authorized the creation of the Truth and Reconciliation Commission (TRC) and Commission of Investigation on Enforced Disappeared Persons (CIEDP). However, the final version of the Act – that was signed into law – differed substantially from the versions agreed upon by government with the victims and the human rights groups, as it contained blanket amnesty for perpetrators of human rights violations.

Despite the Supreme Court of Nepal in 2015 ruling that this provision of amnesty was unconstitutional the government of Nepal has failed to amend the act. In 2020, the Supreme Court rejected a petition by the government of Nepal to reverse its verdict and restated its previous ruling that the act be amended. The government has yet to uphold the ruling. The government has attempted to amend the act in close coordination with Colombian transitional justice experts. The bill has attempted to build on the ‘restorative justice’ idea of the Columbian process however, it seems unlikely that the victims will agree to it as it remains far from the mandate suggested by the Supreme Court and allows political parties the freedom to reduce the severity of the sentences given to perpetrators.

The CIEDP and TRC’s term was extended by the government until the 15th of July 15 year, it is therefore unlikely that all 2,506 complaints of disappearances and 63,718 cases submitted to the truth commission will be investigated. To date the commissions have not recommended any cases for prosecution and the victims have not received any update on the status of the disappeared.

A recent figure released by the National Human Rights Commission of Nepal states that, among the cases of violation investigated by the commission, 779 (65.16 %) were committed by the state, 287 (24.03 %) by the Maoists, and 38 (3.19 %) by both the parties. With the changing political scenario and the dominance of the United Communist Party of Nepal, the power of the commissions has diminished as yesterday’s perpetrators are now leaders. The culture of impunity is reflected by the election of Agni Sapkota as the speaker of the House of Representatives despite him facing a charge for murder.

Another challenge faced in the transitional justice process comes from the Nepalese Army, which maintains a position that Civil Courts cannot try Army Personnel. Human Rights advocates assert that this continued failure of the transitional phase is a direct result of perpetrator-led political maneuvering. Om Astha Rai, postulates in Yesterday’s enemies, today’s comrades, the delayed process is because the current political landscape includes perpetrators of human rights abuses who have consistently blocked and impeached processes of accountability .

Furthermore, the victims are wary of the transitional justice mechanisms as they offer no victim-protection or safety to them. Many victims claim that the transitional justice process is elite-led as it is centered around the metropolitan cities, away from rural Nepal; the battlefield of the ten year long conflict.

An effective transitional justice system requires strong legal foundations consistent with international law and standards, and the political will to address the demands of victims of the conflict, but in the case of Nepal, it is marred by political maneuvering aimed at evading accountability. The culture of impunity and failure to uphold the rule of law will alienate the victims of the wartime conflict and create a fragile state where the respect for rule of law is eroded. With perpetrators continuing to dominate the political landscape justice remains distant for wartime victims.

The peace process heralded by the signing of CPA has now lasted longer than the war, as the country remains mired in transition, without substantial progress. The perpetrators of crime are elected as members of the government while victims like Ganga Maya Adhikari are left to fight an endless battle for justice.

 

Prachi Aryal is a MA student in the Department of War Studies at King’s College London. Her research interest is inclined towards Gender, Human Rights, and Cross border conflicts in transitioning nations and how visuals from conflict zones play a role in communicating the realities of conflict to the broader world. She completed her BA in Journalism from the University of Delhi, India.

Notorious RBG: Justice Ginsburg and Shattering the Glass Ceiling

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by Isabela Betoret

Ruth Bader Ginsburg in her chambers in at the Supreme Court on July 31, 2014.

Women belong in all places where decisions are being made.
– Ruth Bader Ginsburg

The passing of Justice Ruth Bader Ginsburg, who may be the most well-known US Supreme Court Judge in the world, feels like someone scratching at an already open wound. The underrepresentation of women in sectors from media to academia has been well documented. Leslie and Cimpian go as far as suggesting that women are underrepresented in any sector that is perceived to require raw ability and talent over effort.

Senator Mitch McConnel, in the same statement where he offered condolences to Justice Ginsburg’s family, said that congress would waste no time in approving Trump’s pick to replace her. As Justice Ginsburg was only the second of four women ever appointed to the Supreme Court, followed by Justice Sotomayor and Justice Kagan, the odds are not in favour of the fifth being next. With McConnel in control of the senate, it is possible that a conservative pick could be approved before the election in November and a possible change in leadership, shifting the priorities of the court for generations to come.

And so, the wound reopens a little, we lose a woman in one of the highest positions of power. A role model to millions of female students and law graduates aspiring to the foremost jobs in the legal system, as well as to millions of women who benefited from the closer scrutiny Ginsburg gave to laws that affected them.

The women who occupy spaces in politics and conflict seem to be, largely, well known. Female heads of state are criticised for their every move, and it is far too easy to remember all their names because of the often-outrageous coverage they receive. Female professors, those who survived in a discipline that was for so many years hostile to our existence within it, are memorable. Though they are perceived to be less naturally talented, their brilliance has shone through years of doubt directed at them. Like Justice Ginsburg, they help millions find inspiration and courage by virtue of their work being published.

Though in the years since the women’s liberation movement there has been an influx of women into male-dominated fields, this was not often looked at in a positive light. Two studies one in 2016 and one in 2018 revealed that eighty percent of surveyed female European MPs had experienced acts of psychological violence; from harassment and misogyny to explicit threats of physical harm. Martin Van Creveld wrote that the more women who enter a profession the fewer men would remain due to its decrease in value because of ‘Feminisation’. Though he was referring explicitly to the Military, the roles for women in conflict areas has remained low. Women appear to be attacked for daring to enter the field, and then face constant threats and doubt once inside.

For all the inspiration they provide, women in positions of power in the realm of conflict and politics are rare. Statistics from the United Nations are staggering. Between 1992 and 2018 only thirteen percent of negotiators, three percent of mediators, and four percent of signatories in major peace processes were women; numbers which do not seem to have improved in the last couple of years. Before 2018 under fifty percent of humanitarian responses to conflict took into account gendered data. Studies have shown an increase of misogynistic and sexist speech by world leaders has increased the rate of violence committed against women. In January 2019 only 24.3 percent of parliamentary seats globally were held by women, and 19 women served as Head of State or Government. Only 21.7 per cent of Heads of Higher Institutions were women in 2017. And in the United Kingdom, women in academia were paid, on average, 15.1 per cent less than men in 2019.

With such numbers is it surprising that women like Ruth Bader Ginsburg are so widely admired? Despite the lack-lustre representation, there is now precedent for women in the world of conflict. Ginsburg did for the law what many women did in other fields. Marie Colvin for journalists and war correspondents; Condoleezza Rice, the first female Africa-American Secretary of State; Hillary Clinton, the first female presidential nominee for a major political party. But we must remember that for those doors to be opened the women who first walked through them had to live in conflict.

Ginsburg had to fight against blatant sexism in order to make it to the very top of the legal profession. She was demoted from her job at a social security firm when pregnant with her first child, leading her to conceal her second pregnancy almost to term. She was one of only nine female students at Harvard Law School in a class of five hundred, and every day her place there was questioned because of her gender. She worked on the legal side of the Women’s Liberation Movement, being one of the first to argue gender discrimination cases in the Supreme Court—where she had to teach the justices what that meant. Despite facing cancer five times, she only missed oral arguments twice due to illness. Many other women balance motherhood and the expectations of society with their careers and ambitions.

For the first time in history it became possible to urge before the courts successfully that equal justice under law requires all arms of government to regard women as persons equal in stature to men.
- Ruth Bader Ginsburg

Representation is not enough without inclusion. Tokenism will always fall short, and it will never give the minds of women the credit they deserve. We do not fight to have a woman be placed on a position of power because she is a woman; rather, we argue that she belongs there because of her brain, of her ability, her passion, and these should not be devalued because of her gender.

Self-belief, it would seem, is not an attractive quality in a woman. We are constantly forced into being humble and modest until we stop believing in all the things we are capable of. Women are now represented, if poorly, in conflict resolution and politics. Women have always been a part of the history of war, be it in the home front or on the battlefield—but femininity is often absent, both in men and women, in this field. To survive in the world of conflict we must harden our edges and adopt many of the qualities of the masculine workforce we enter.

According to a study by Krause and Bränfors, those precious few instances where women are sitting at the negotiating table during peace processes tend to end in a more durable peace. The same study found that ‘peace agreements signed by women show a higher number of agreement provisions aimed at political reform and a higher implementation rate of these provisions.’ Through the Coronavirus Pandemic countries led by women were said to have a better response to the crisis. The answer does not necessarily lie in their gender or biology, women are not genetically pre-determined to make more effective leaders. Helen Lewis argues that a shift in leadership style, away from the strongman, the traditional masculine leader in the time of uncertainty (be it male or female) is occurring. A change of perspective is suddenly welcome, and it would appear many new ideas and styles are being brought forth by women—but more importantly, people seem to be listening.

If our field could do with more women, it could also do with the qualities of individual women, not merely having us imitate what has already been done in order to have a seat at the table. Like Ruth Bader Ginsburg we can teach those around us why our perspective is unique, and both men and women can benefit from it. Despite Van Creveld’s objections, a change of perspective may not be so wholly disastrous.

Women like Ruth Bader Ginsburg matter and we feel their loss so acutely because there are few examples for us to look up to. Few encouragements to put pen to paper—or fingers to keyboard—and have the courage to say: this is what I think, and I know it has value; I know it is good, and you will listen to it not because I am a woman, but because what I have to say matters.

Justice Ginsburg once said ‘I think I was born under a very bright star.’ Ginsburg knew what her life meant, and she believed in all she had achieved. Not only was she proud of her legacy, but she also inspired women all over the world to be proud of their own accomplishments. The remedy to the pain, and the only way to close the wounds left behind, is not for one woman to take her place—but for all of us to do so. For every single one of us to take the inspiration she gave and believe in our own potential. As Justice Ginsburg once replied when asked when there would be enough women in the Supreme Court: ‘When there are nine.’

Isabela Betoret is the Outreach Coordinator in charge of the Women In Writing Mentoring Scheme. The Scheme is an opportunity for women undertaking an MA at King’s College London to interact with a network of similar-minded people, build a community, become familiar with the world of academic publishing, and improve confidence in their writing skills. The Scheme exists to be the outstretched hand welcoming you to our community, the rest is up to you. If you would like to know more about Women In Writing or apply to the scheme you can do so here.

Nuclear Non-Use: Normative versus Legal Constraints

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by Anahad Kaur Khangura

“Ours is a world of nuclear giants and ethical infants,” as General Omar N. Bradley famously said with reference to nuclear weapons and their use. Pictured: the atomic cloud over Nagasaki (Image credit: Wikimedia Commons).

The emergence of nuclear non-use is understood to be a significant norm of constraint in the international security arena. During the Cold War, non-use emerged as an instrument to maintain deterrence between the U.S. and the Soviet Union. This longstanding tradition of non-use is surprising when one considers that with the inception of the nuclear era, it was broadly assumed that nuclear weapons would become a ‘standard feature of modern warfare’. In March 1955, President Dwight D. Eisenhower even stated that nuclear weapons should be ‘used just exactly as you would use a bullet or anything else’. However, the striking fact about nuclear weapons is that they have not been used since 1945. Nevertheless, nations are actively constructing nuclear weapons programmes to maintain their strategic interests.

In light of the seventy-fifth anniversary of the bombings of Hiroshima and Nagasaki, it is questionable whether the use of nuclear weapons would still be legal under the current laws of conflict set up under the Geneva Conventions. However, even though nuclear non-use stands strong today, there is no guarantee that nuclear-armed countries would not consider using such weaponry when their national integrity is under imminent threat.

Normative constraints on non-use

When considering the origin of normative constraints regarding the nuclear taboo, it is imperative to understand the meaning of the term ‘norm’. A norm could be defined as “a shared expectation about behaviour, a standard of right or wrong.” Research on the subject of nuclear non-use uses a variety of terms such as ‘nuclear taboo’ and ‘tradition’ to define its nature. Should nuclear non-use become a ‘taboo’, it could be identified as a “powerful de facto prohibition against the first use of nuclear weapons.” Indeed, violent instances such as the wars in Korea and Vietnam highlight that the US military addressed ethical and normative concerns while discussing the deployment of nuclear bombs, or the non-use thereof. These examples display that normative concerns have previously acted as driving factors within the USA’s nuclear decision-making. Such a taboo doctrine can also be affiliated with a prevalent repulsion towards nuclear capability and widely-held inhibitions on their use.

The scope of the normative aspect of nuclear non-use is that it can either restrain the use of nuclear weapons instrumentally, where it could appear in the ‘form of a perceived cost’; or it could curb their proliferation more substantively when the set of a country’s core values do not align with their use. In the past, the nuclear taboo has served as a ‘moulding’ component in the historical pattern behind non-use. However, one ought to remember that ‘norms do not determine outcomes, they [merely] shape realms of possibility’. As such, norms influence the likelihood of a certain course of action. By stigmatising the use of nuclear weapons, then, the nuclear taboo lowered the probability of nuclear weapons use. However, it remains hard to quantify such a statement without a legal component.

Legal constraints on non-use

Legal frameworks on nuclear non-use are an instrument to maintain mutual deterrence among adversaries. Legal constraints such as the No First Use policy (NFU), a pledge made against the using nuclear weapons unless first attacked by an adversary are beneficial in upholding the custom of nuclear non-use within a legal structure. Therefore, the mutual guarantee against the deployment of nuclear weapons, as it is based on internationally recognised legal conventions, serves as an incentive in preserving the tradition of non-use.

However, the current machinery of international politics is facing immense obstruction due to the lack of trust and confidence among nations. Think for example of the slow process in formalising the NFU policy between India and Pakistan. For this reason, legal restrictions are gaining momentum as they promote accountability and provide states with enhanced confidence regarding nuclear non-use by their adversaries. In addition to ensuring confidence, legal constraints on non-use are also supported by a framework of culpability which ensures repercussions upon any party which violates the clauses of any legally binding agreement.

Other constraints on non-use

While it is imperative to recognise the complementary nature between the legal and normative constraints on nuclear non-use, it would be misleading to only consider these elements in describing the structure of nuclear non-use and its function.

Whereas the realist approach towards non-use emphasises the maintenance of mutual deterrence through the regulation of material interests; constructivism approaches from the perspective of norms. Therefore, the overemphasis of the normative elements might overlook the need for maintaining strategic stability and the significance of rational self-interest which played a vital role in forming the non-use tradition at the height of the Cold War. Similarly, overplaying the legal frameworks might lead to ignorance on normative constraints.

However, both approaches are obstructed by deficiencies as the sole reliance on either realist or constructivist approach might be an incomplete approach towards understanding non-use. To avoid oversimplifying a complex issue, one ought to be aware that other factors also contribute to the longstanding existence of nuclear non-use as a custom. In fact, understanding the complexity of nuclear non-use requires the addressing of a combination of factors that impact a nation’s decision-making process towards nuclear weapons and their (non-)use.

There are major anomalies if nuclear non-use is only understood from a single vantage point. A notable example is the case of nuclear non-use between India and Pakistan. Both parties possess nuclear weapons and are also not bound by the legal confinements of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) as the countries consider the treaty as a discriminative policy of disarmament that does not impose a fair and complete ban of nuclear weapons. However, despite their endemic rivalry and border insecurities regarding the disputed territory of Kashmir, both sides maintain it.

Multiple reasons could explain non-use in this scenario: it could be that both sides abide by the global non-proliferation norms that exist even outside the parameters of the NPT; both sides might be upholding the normative elements of non-use to avoid large scale destruction; or both parties might well be adopting non-use to preserve their global reputation as responsible members of the international community. However, the tradition of non-use should not be understood as absolute but rather be considered loosely, keeping in mind that states might alter the custom to elevate their national interests.

Additionally, legal frameworks can also be interpreted as a form of internalisation and institutionalisation of the nuclear taboo. Therefore, normative and legal constraints on non-use not only interact with one another but they also provide a “stabilising” effect on nuclear non-use. Consequently, the prescriptive nature of nuclear non-use can only be conceived in its true essence when an integrated approach is adopted which uniformly acknowledges all factors involved.

Anahad Khangura is a Master’s student at War Studies. Her academic interests are inclined towards types of political violence and counterterrorism strategies. Additionally, Anahad bears a keen interest in the security concerns of the Asia Pacific region, specifically in context of the trilateral relations between India, Pakistan and China. For her Masters dissertation, Anahad evaluated the adaptability of terrorist organisations in light of a comparative analysis between Lashkar-e-Taiba and Hezbollah.

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.