Working 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).
The ICoC is applicable to PSCs working in complex environments and is a useful reference for private sector purchasers of PSC services. DoD supports the Department of State in other international efforts aimed at regulating private security and military support services.
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. 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, Non-Governmental Organizations (NGOs) and companies that contract for private security services, as well as for PSCs and other military support contractors (sometimes called Private Military Companies or PMCs.) 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 DoD works 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 continues since then. DoD believes that its policy, directives, instructions, the requirement for compliance with the ANSI or ISO standard for PSCs, and its other contracting and regulatory practices implement all of the provisions of the Montreux Document for contracting States. This regulation 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, use of force, training, and applicability of Host Nation Law. Other elements of national law and standard clauses required by the Federal Acquisition Regulations and Defense supplements (DFARS) 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 U.S. Government's support of the Montreux Document is active and continuous. 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 Department of Defense promoted the development of a Forum for Montreux Document Participants. The purpose of the Montreux Document Forum is to provide an informal consultative arrangement whereby participants in the Montreux Document process can share information, review best practices, work to ensure consistency in national legislation, provide State oversight of the International Code of Conduct initiative, and review application of the goals of the Montreux Document to conditions other than armed conflict and for non-State purchasers of such services. The International Committee of the Red Cross and the Swiss Federal Department of Foreign Affairs co-chair this forum. The U.S. Government currently chairs one of the forum’s working groups and serves as “Friend of the Chairs.” The most significant development specifically intended to support U.S. implementation the Good Principles of the Montreux Document are the consensus based performance standards for PSC operations, described above.
The International Code of Conduct for Private Security Service Providers (ICoC):
Article 8 of the Introduction to the Montreux Document states: “That while this document is addressed to States, the good practices may be of value for other entities such as international organizations, NGOs and companies that contract PMSCs, as well as for PMSCs themselves.” The PSCs that acted as expert advisors in the development of the Montreux Document accepted this recommendation and approached the Swiss Government to facilitate the development of a tool that would enable the PSC industry to adapt and apply the Montreux Document’s good practices in their own operations. This effort produced the International Code of Conduct for Private Security Service Providers. The ICoC was signed by 58 private security providers in Geneva in November 2010. There are hundreds of signatory companies today.
The ICoC represents the PSC industry's commitment to abide by the legal obligations of the Montreux Document and implement the recommended good practices in that document which are appropriate to private security service providers and other practices 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. It supports implementation of the Montreux Document. It does not impose any obligation on States and States are not parties to the ICoC. In 2013, PSCs, some governments, and a select few Human Rights-based advocacy NGOs formed a multi-stakeholder initiative known as the International Code of Conduct Association (ICoCA). This is a private association formed under Swiss law and headquartered in Geneva. Key points of DoD support for the ICoC 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 or ISO 18788 implement the recommended good practices of the Montreux Document and are consistent with the commitments made by PSCs in the ICoC.
- DoD does not sanction or endorse the ICoCA, its service, products, or activities..
- DoD will not require membership, certification and oversight by the ICoCA as a condition of any DoD contracts. Neither can DoD show the ICoCA any preferential treatment.
Additional information about the ICoC can be found at: http://www.icoca.ch/
Guidance on the use of force:
The use of force and the potential to use deadly force is the fundamental issue that distinguishes private security contractors from other operational contract support (civilians accompanying the armed forces.) Regulating the use of force and violence is a sovereign prerogative of States and, in many cases, is also subject to the provisions of international law, to include the Law of Armed Conflict and outside of armed conflict, International Human Rights Law. The Department of Defense is involved in several initiatives to ensure that the use of force by PSCs is consistent with international law and the notion of State monopoly of violence.
The Department of Defense works closely with the International Institute of Humanitarian Law in Sanremo, Italy in its Rules of Engagement Workshops and The Sanremo Handbook on Rules of Engagement. This handbook is used by armed forces on all six inhabited continents in developing Rules of Engagement (ROE) for their armed forces, including U.S. Geographic Combatant Commands and the Joint Staff. DoD participation helps students understand the differences between armed forces and PSCs and the critical differences between ROE appropriate to armed forces in combat and the Rules for the Use of Force (RUF) for civilian self-defense.
To further clarify this distinction and in recognition that most purchasers of PSC services are not States and international organizations, but come from the private sector (to include NGOs), DoD participated in an initiative sponsored by the United Nations Office on Drugs and Crime (UNODC) to develop a Use of Force Handbook for PSCs. This work is patterned after the Sanremo Handbook and is written by many of the same authors. The difference is its sole focus on use of force appropriate to PSCs rather than a broader work on ROE that can be used to develop RUF. The UNODC initiative also addresses that in many cases, PSCs will not be operating under State issued or approved RUF but under a use of force policy developed by the private sector purchaser of security services or by the PSC itself. This UNODC sponsored effort was published in September, 2016 as the Handbook for Use of Force by Private Security Companies by the NGO Oceans Beyond Piracy. It is available on their website. This handbook can be useful for both formal RUF development and use of force policy consistent with recognized PSC operations standards.
The distribution of contractors in Afghanistan by mission category are:
