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Private Security Companies:
The Department of Defense, to include Geographic Combatant Commanders, may contract for private security functions to fulfill non-combat requirements for security in Contingency Operations, Humanitarian or Peace Operations, or Other Military Operations or Exercises. Private security functions include guarding of personnel, facilities, designated sites, or property of a Federal agency, the contractor or subcontractor, or a third party. It also includes any other activity for which personnel are required to carry weapons in the performance of their duties. PSCs may not engage in combat, defined as deliberate destructive action against hostile armed forces or other armed actors. The use of force by PSCs is limited to self-defense, the defense of others and the protection of inherently dangerous property or critical infrastructure from theft or destruction. It is the policy of the Department of Defense that PSCs must be regularly established, registered, well regulated, rigidly disciplined, properly staffed with carefully selected operating personnel. This policy reflects U.S. law and is implemented through Department of Defense Directives, Instructions, and acquisition policy, to include the use of rigorous and verifiable business and operational standards.
DoD Goal for PSCs:
Contracted private security functions remain a legitimate and effective method for providing non-inherently governmental protection of personnel, property, and activities in contingencies and areas of other significant military operations where the use of military or other government security forces are unavailable, insufficient, or inappropriate.
- The use of force in such protective services is limited to self defense and defense of others against unlawful attack.
- Services must be provided using methods and techniques that promote, and do not undermine, long-term stability and security of the region in which these services are performed.
- Misconduct on the part of any PSC affects the ability of all PSCs to operate. Therefore, contracted security functions should be performed to quality standards common to all private security providers, regardless of contracting entity.
US Law:
Department of Defense Instructions and Directives:
Standards:
Section 833 of the National Defense Authorization Act of 2011 required the Defense Department to use business and operational standards in contracting and management of PSCs, with the intent of raising the overall standard of performance of these companies. The Department of Defense facilitated the development of consensus based quality management standards, which have been recognized by the American National Standards Institute and are achieving international recognition.
This standard is accompanied by ANSI/ASIS PSC.2-2012 Conformity Assessment and Auditing Management Systems for Quality of Private Security Company Operations. This second product supplements and builds upon ISO/IEC Standard 17021:2011 Conformity assessment — Requirements for bodies providing audit and certification of management systems. Whereas the ISO/IEC standard provides general guidance for conformity assessment to any management standard, the ANSI/ASIS standard is specific to the requirements of auditing private security functions. It includes requirements and guidance on the management of audit programs, conduct of internal or external audit of the management system and private security company operations, human rights considerations, as well as the competence and evaluation of auditors. This standard will enable certification bodies to become accredited for and to provide independent, third party audits of PSCs. Such certification will provide a measure of due diligence in the selection of PSCs, by providing an independent review that a company can in fact, operate in accordance with the good practices of the Montreux Document and the International Code of Conduct.
International Efforts:
The Department of Defense supports international efforts for regulation and oversight of PSCs. These efforts include the development and promotion 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; development, implementation, and promotion of the International Code of Conduct for Private Security Service Providers; and supports the Department of State in other international efforts at regulation
The Montreux Document
The Montreux Document, as its full title suggests, describes existing legal obligations regarding Private Military and Private Security Companies and lists recommended good practices for States which contract for such services as well as the States in which the companies are registered and/or operate. Although oriented on armed conflict, the Montreux Document states that its recommended good practices may also be instructive for post-conflict situations and for other, comparable situations. Further, although addressed to States, the good practices may be of value for other entities such as international organizations, NGOs and companies that contract for private security services, as well as for PMCs and PSCs themselves. Although the Montreux Document is not a binding international agreement, DoD recognizes the existing legal obligations described in the document and the value of its recommended good practices. DoD believes that its policy, directives, instructions, and the requirement for conformance with the ANSI standard for PSCs are consistent with and implement all of the provisions of the Montreux Document.
The Montreux Document can be accessed at:
http://www.eda.admin.ch/etc/medialib/downloads/edazen/topics/intla/humlaw.
Par.0078.File.tmp/Montreux%20Broschuere.pdf
The International Code of Conduct for Private Security Service Providers (ICoC):
The ICoC represents the PSC industry’s commitment to abide by the legal obligations of the Montreux Document and implement the recommended good practices appropriate to private security service providers consistent with broadly accepted human rights principles. The Department of Defense encourages companies to commit to the principles of the ICoC as a means which supports DoD goals for private security functions. DoD support for the ICoC, however, is limited to the nature of this voluntary, industry led initiative. Key points include:
- The ICoC does not bind governments and incurs no obligations on the Department of Defense
- DoD performance requirements for private security contracts are consistent with the principles of the ICoC. However, DoD will not require signature to the ICoC or certification and oversight under the ICoC as a condition of any DoD contracts
- DoD requirement for conformance with ANSI/ASIS PSC.1-2012 implements many of the recommended good practices of the Montreux Document and supports all of the provisions, principles, and commitments of the ICoC
Since January of 2011, a temporary steering committee drawn from the PSC industry, Montreux Document Participating States, and non-governmental human rights interest groups have been working to design an oversight and governance structure consistent with the requirements described in the Code. DoD supports the establishment of a governance body to maintain and promote compliance with the ICoC and the Program Support office provides the U.S. Government technical expert to the steering committee. The authority of this governance body, however, must be consistent with the private, voluntary, nature of the ICoC itself. Therefore, consistent with obligations under U.S. law, the DoD goals described above and overarching DoD policy, DoD support to the governance structure is conditional that the charter:
- Does not interfere with DoD goals for private security functions
- Cannot conflict with U.S. law, statute, regulation or Department directives and instructions
- Cannot interfere or compete with government authority to regulate private security functions
- Does not duplicate other oversight or quality control of such services
- Does not interfere with the effectiveness of private security functions
- Does not increase the U.S. Government’s costs for acquiring such services
Otherwise, industry is free to work with other interested parties as they think best to promote the quality of services consistent with international and national law
Further information about the ICoC can be found at: http://www.icoc-psp.org/uploads/INTERNATIONAL_CODE_OF_CONDUCT_Final_without_Company_Names.pdf
Recent Developments:
May 25, 2012: The Deputy Assistant Secretary of Defense (Program Support) co-hosted a meeting with the Deputy Assistant Secretary of State (Diplomatic Security Services) for representatives of PSCs under current contract with DoD and DOS. The purpose of the meeting was to listen to the concerns and suggestions of these PSCs with regard efforts to build governance and oversight mechanisms for the International Code of Conduct. All parties expressed a commitment to work together to build governance and oversight that was feasible, acceptable, and provided value added beyond existing mechanisms, such as the new PSC quality management standard. PSC representatives were in general agreement that the way forward must build on the PSC Standard and its associated conformity assessment standard. Near term efforts must identify what those, and other existing processes, already offer towards implementing the ICoC, and then build something that fills the gaps, without duplication. There was also support for a mechanism that offered a venue for PSCs and all other interested parties to dialogue on and work to resolve issues of mutual interest.
May 22, 2012: The Office of the Under Secretary for Acquisition, Technology, and Logistics published a change to the Programs, Requirements, and Information (PGI) of the Defense Federal Acquisition Regulation Supplement (DFARS). This change requires contracts which include the performance of security services, performed in areas of (a) combat operations, (b) contingency operations, or (c) other military operations or exercises, to incorporate, and require compliance with, ANSI/ASIS PSC.1-2012, American National Standard, Management System for Quality of Private Security Operations. This PGI can be found at http://www.acq.osd.mil/dpap/dars/pgi/pgi_htm/PGI225_74.htm#225.7401
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