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Private Security Companies (PSCs)

 

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. 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 includes any other activity for which personnel are required to carry weapons in the performance of their duties. 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.
  • Service 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.

U.S. Law:

In addition to the laws and acquisition regulations that apply to all contingency contracting, the following laws and regulations are particularly applicable to PSCs and other armed contractors:

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. Pursuant to this requirement, the Department of Defense facilitated the development of consensus based quality management standards. These standards were recognized by the American National Standards Institute in March 2012. Since May, 2012, all Defense Department contracts for private security functions performed overseas require conformance with this standard.

This standard is accompanied by a conformity assessment standard.  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 On Pertinent Legal Obligations and Good Practices for States Related to Operations of Private Military and Security Companies During Armed Conflict and the International Code of Conduct for Private Security Service Providers.

The American National Standards Institute, through its accreditation body (ANAB) is in the process of developing rules for accrediting certification bodies and auditors to audit and certify PSCs to the PSC.1 standard (May 2013). The United Kingdom Accreditation Service is facilitating a pilot certification program  and coordinating its efforts with ANAB.

The PSC operations standard is supported by a maturity model. This is a tool which PSCs and government auditors (such as the Defense Contract Auditing Agency and Inspectors General) can use to assess how far along a company towards full conformance. Rather than being a pass/fail audit, it identifies the degree to which a company has implemented the objectives of the standard and identifies ways to move from where a company is at that moment towards meeting those objectives. This maturity model is also useful for Private sector purchasers of PSC services in assessing whether a PSC under contract with them is implementing the PSC.1 Standard.

These standards are achieving international recognition and use. In December 2012, the British Foreign and Commonwealth Office announced that the PSC.1 Standard will be required in all overseas contracts for private security services. As cited above, the United Kingdom’s Accreditation Service is working to accredit British certification bodies to audit using the PSC.2 conformity assessment standard. The Joint Accreditation Service Australia-New Zealand is working on a similar certification program for PSCs operating out of those countries. The PSC.1 standard was accepted by ISO in March 2013 as a new work item.

International Efforts:

With other U.S. Government agencies, 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; and promotion of the International Code of Conduct for Private Security Service Providers (ICoC) for PSCs and private sector purchasers of PSC services. DoD supports the Department of State in other international efforts at regulation, including private maritime security companies and the work of UN agencies in PSC oversight.

The Montreux Document
The Montreux Document 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. The U.S. Government’s support of the Montreux Document is active and continuous.

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. Although the Montreux Document is not a binding international agreement, the U.S. Government recognizes the existing legal obligations described in the document and the value of its recommended good practices. DoD’s regulations covering PSCs are reviewed for consistency with the Montreux Document and we are work with other agencies of the U.S. Government for consistency throughout the government and to promote the Montreux Document internationally.

Regulation of Private Military and Private Security Services by the United States began before Montreux and has continued since then. DoD believes that its policy, directives, instructions, the requirement for conformance with the ANSI standard for PSCs and its other contracting and regulatory practices implement all of the provisions of the Montreux Document for contracting States. These can be found in the U.S. Laws and Defense Department Directives and Instructions cited above. PSC specific elements include the determination of services, selection and vetting of PSCs, accounting for weapons and other materiel, Rules for the Use of Force, training, and applicability of Host Nation Law. Other elements of national law and standard clauses required by the Federal Acquisition Regulations apply to all contractors accompanying the force or providing operational support. These laws and implementing clauses cover elements such anti-human trafficking, other personnel welfare provisions, measures against bribery and corruption, and contract management and oversight. The most significant development specifically intended to support U.S. implementation the Good Principles of the Montreux Document is the consensus based performance standard for PSC operations, described above.

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

A detailed description of the U.S. Government’s implementation of the Montreux Document can be found in a response to a questionnaire on that subject:

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 supporting DoD strategic goals for private security functions. The ICoC remains, however, a voluntary, industry led initiative. Key points of DoD support include the understanding that:

  • The ICoC does not bind governments and incurs no obligations on the Department of Defense.

  • Current U.S. Government requirements for conformance with ANSI/ASIS PSC.1-2012 implement the recommended good practices of the Montreux Document and realizes the commitments made by PSCs in the ICoC.
  • DoD will not require signature to the ICoC or certification and oversight by the ICoC Association as a condition of any DoD contracts.

In September 2013, the ICoC Association was inaugurated in Geneva, Switzerland to provide the oversight and governance structure consistent described in the ICoC. This was the culmination of a three year effort of a temporary steering committee drawn from the PSC industry, Montreux Document Participating States, and non-governmental human rights interest groups. The Department of Defense supplied the U.S. Government technical expert to this process. The US Government supports the establishment of the ICoC Association authority of which is limited to 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 Association is conditional to the understanding that participation in the Association:

  • 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

Further information about the ICoC can be found at: http://www.icoc-psp.org/uploads/INTERNATIONAL_CODE_OF_CONDUCT_Final_without_Company_Names.pdf and http://www.icoca.ch/


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