Any of our business? Human Rights and the UK private sector

Any of our business? Human Rights and the UK private sector - Human Rights Joint Committee Contents

Memorandum submitted by James Cockayne, International Peace Institute

1. I write to submit evidence to the Joint Committee on Human Rights ("JCHR") Inquiry into Business and Human Rights, regarding the relevance of the Public Consultation on Private Military Companies announced by the Foreign Secretary on 24 April 2009 ("PMSC Consultation"). I seek your indulgence in submitting this evidence slightly after the deadline for submissions to the JCHR of 1 May 2009, since this PMSC Consultation was only recently announced.

2. I submit this evidence in a purely personal capacity, having worked on these issues for seven years. I am a United Kingdom citizen. I work as a Senior Associate at the International Peace Institute in New York, a not-for-profit research and policy development organization based in New York which assists the international community to develop effective responses to armed conflict and insecurity. For the last three years I have worked closely with officials from Her Majesty's Government (HMG) and numerous other governments to improve international regulation of private military and security companies (PMSCs). This culminated in the endorsement by 17 governments (including HMG), on 17 September 2008, of the "Montreux Document", affirming existing international legal obligations and setting out "Good Practices" for states dealing with PMSCs. I was one of two NGO representatives who provided strategic, drafting and policy guidance to the organizers of this process.

Relevance to the JCHR Inquiry of the FCO Public Consultation on Private Military Companies—A practical opportunity to apply the "Protect, Respect, Remedy" Framework developed by the UN Special Representative of the Secretary-General on Business and Human Rights, Professor John Ruggie

3. On 24 April 2009 the Foreign Secretary announced that the Foreign and Commonwealth Office (FCO) will conduct a Publication Consultation on Private Military Companies, running until 17 July 2009. This PMSC Consultation aims "to seek views from stakeholders and interested parties on the Government's proposal to promote high standards in the industry by working with the relevant trade association, using our status as a key buyer, and increasing international standards through international cooperation".[282] The consultation documents make clear that the "standards" that HMG seeks to promote through this regulatory package include respect for international humanitarian law and human rights law.

4. The consultation presents a practical opportunity for the JCHR to consider the application of the Ruggie policy framework in the UK regulatory context. The Ruggie framework could provide HMG significant guidance in its domestic regulatory efforts and its international diplomacy to promote an international regulatory framework. Yet to date the PMSC Consultation process has made no reference to the "Protect, Respect, Remedy" framework promoted by Professor Ruggie (and supported by HMG). The danger is that if this regulatory effort proceeds without reference to the Ruggie framework, HMG's support for that policy framework might be called into question.

5. HMG's efforts to drive up standards in the private military and security industry are to be commended. The private military and security industry has a uniquely rights-jeopardizing potential amongst major UK business sectors, because the use of force is at the heart of the expertise and services it provides. As HMG itself recognizes in the published Consultation Document, some of the services "offered by security companies … could have direct lethal consequence. There is a risk that, however unintentionally, PMSC activity might give rise to human rights or humanitarian law concerns, assist internal repression, or provoke or prolong internal or regional tension".[283]

6. HMG is therefore consulting on a policy which has two objectives:

to promote high standards of conduct by PMSCs internationally; and,

to reduce the risk that the activities of PMSCs might give rise to human rights or humanitarian law concerns, assist internal repression, or provoke or prolong internal or regional tension."

7. To achieve those objectives, HMG has presented a specific policy proposal, namely "a composite package of:

Working with the UK [private military and security] industry to promote high standards through a code of conduct agreed with and monitored by the Government [but implemented and enforced by the British Association of Private Security Companies, a private trade association];

Using our status as a key buyer to contract only those companies that demonstrate that they operate to high standards;

An international approach to promote higher global standards, based on key elements of the UK approach."

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8. The HMG policy package implicitly acknowledges that HMG has the ability to improve respect for human rights in this particular business sector by:

— more effectively discharging its Duty to Protect through ensuring it contracts only with PMSCs that respect human rights, and through promotion of effective standards at the international level;

— taking steps to ensure that PMSCs themselves adequately discharge their Responsibility to Respect (through adoption and enforcement of an industry-wide Code of Conduct); and by

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9. Yet despite HMG's support for the "Respect, Protect, Remedy" Framework,[286] and its evident relevance to the PMSC consultation,[287] the consultation documents currently make no reference to the Ruggie policy framework. This disconnect between the PMSC consultation documents and the "business and human rights" policy framework the Joint Committee is now inquiring into presents two real, practical risks for HMG.

10. First, while recognizing the unique characteristics of the PMSC industry, there is a danger that any efforts made by HMG to lend support to the Ruggie policy framework—either through national implementation or through international diplomacy—may be seriously weakened if HMG is seen to be regulating this industry without reference to that framework. It will be hard for HMG to make the case for other governments to regulate business through reference to the Ruggie policy framework if it is regulating this industry—with its recognized potential for "lethal consequence" and human-rights-infringement—without itself referencing the Ruggie policy framework.

11. Second, and distinct from any effect on HMG's perceived support for the Ruggie policy framework, there is a separate danger that the efforts of HMG to promote effective regulation of and high standards in the PMSC industry may be undermined if the Ruggie policy framework is not incorporated from the start. It would be unfortunate if HMG spent considerable time, effort, and taxpayers' money to develop a regulatory scheme for the UK PMSC industry—and additionally at the international level, as the HMG policy proposal specifically contemplates—only for these regulatory frameworks to have to be overhauled in two or three years, to bring them in line with the broader "business and human rights" framework states are now backing through the Ruggie mandate process. Indeed, as the Ruggie mandate still has two years to run, there may yet be significant further detail added in to the existing policy framework. It would be more efficient for the Ruggie policy framework to be acknowledged within HMG's PMSC regulation effort from the outset.

12. In fact, as I lay out in more detail below, the PMSC consultation offers HMG a practical opportunity to consider application of the Ruggie policy framework. And the Ruggie policy framework in turn may offer HMG practical guidance on how to approach certain aspects of PMSC regulation. Below, I set out three non-exhaustive examples.

Recommendation 1: The Joint Committee on Human Rights should invite the Foreign and Commonwealth Office to share its views on the compatibility of Her Majesty's Government's proposed policy on the regulation of private military and security companies with the "Protect, Respect, Remedy" policy framework.

Recommendation 2: The Joint Committee on Human Rights should encourage the Foreign and Commonwealth Office to explore how the "Protect, Respect, Remedy" policy framework could be integrated into its work on private military and security companies from now on.

Example 1: the State Duty to Protect and potential over-reliance on trade-association-based human rights promotion and enforcement

13. The Ruggie policy framework, which is supported by HMG, affirms states' existing obligations to protect the human rights of individuals within their territory or jurisdiction from third party abuse, and to remedy violations of rights that do occur. As Professor Ruggie's most recent report to the UN Human Rights Council reminds us

"The State duty to protect is a standard of conduct, and not a standard of result. That is, States are not held responsible for corporate-related human rights abuses per se, but may be considered in breach of their obligations where they fail to take appropriate steps to prevent it and to investigate, punish and redress it when it occurs."

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14. Until the specific details of the system of PMSC trade-association-based regulation the FCO envisages are clarified, it will remain questionable whether that system will effectively discharge the PMSC-related aspects of the UK's duty to protect. The proposal presented by the FCO rejects government-run licensing and registration schemes on the grounds that they would be hard for HMG to operate, especially given that breaches of such a regime would occur outside the UK, where "investigation, obtaining evidence and enforcement [are] highly complex and difficult" and expensive.[289] The FCO has presented costings suggesting that such regimes would be over £40 million more expensive over three years than a third option: a trade-association operated Code of Conduct regime.

15. That model, which the FCO prefers, may provide an elegant and cost-effective solution. As I have argued elsewhere, it does seem possible for states and business to collaborate effectively to ensure respect for human rights, through combinations of state-based and market-based regulation.[290]

16. However, the danger is that by relying too heavily on the trade association to discharge the state's obligations of human-rights promotion and human-rights enforcement, HMG may in fact fall short of discharging the UK's duty to protect in this area. The lower predicted costs of HMG's preferred regulatory regime should in fact serve as a warning sign: they indicate that the costs of human-rights promotion and enforcement will be passed on to the industry, and to others who would seek to enforce their rights (ie victims). Absent effective off-setting factors, the result may be strong net disincentives for industry to carry such significant costs of regulation, and serious potential barriers for victims to enforce their rights.

17. The PMSC Consultation documents suggest some off-setting measures that may be put in place. These include linking PMSCs' access to HMG contracts to uptake of the trade association Code of Conduct. Yet as the consultation documents recognize, access to HMG contracts may not be a highly persuasive incentive for many UK-based PMSCs, since they often rely on a largely private clientele (such as extractive companies).

18. The consultation documents also propose an annual review, for three years, by the FCO, of whether the trade-association-based regulation system is working, through measurement of specific indicators (membership targets and reduction in number of complaints upheld).[291] The danger is, however, of setting up checks that produce "false positives", suggesting greater effectiveness in the regulatory regime than is actually present. A reduction in the number of complaints upheld may indicate, for example, not that companies are performing to higher standards, but simply that victims are finding it harder to access the grievance mechanism put in place. If it is too expensive and difficult for HMG to gather and analyze the information needed for effective PMSC performance monitoring overseas (as the FCO consultation documents argue in rejecting the registration and licensing options), it is hard to see how a trade association with just a couple of staff, or victims of human rights violations, will have the means to gather and present reliable and accurate information on PMSCs' performance, absent considerable assistance from HMG.

19. One particularly key aspect of the state duty to protect which currently is not mentioned in the PMSC Consultation Documents is state prosecution. The Consultation Document does countenance a trade-association-based non-judicial grievance mechanism of some kind (which I discuss further below), but makes no mention of how that mechanism might be connected to state-based criminal prosecution. The ultimate penalty that the PMSC Consultation Documents seem to countenance, where a PMSC is found to have violated human rights, is expulsion from the trade association. Unless provision is made for the trade association to provide information it has garnered about possible human rights violations to appropriate state authorities (whether in the UK or in host states), the result may be that HMG finds itself in the position of failing to discharge its duty to protect (either through investigating and prosecuting human rights crimes committed within its territory or jurisdiction, or through the provision of mutual legal assistance to other states who may be in a better position to conduct such investigations and prosecutions).

20. The PMSC consultation documents also say nothing about whether HMG has considered addressing existing lacunae in UK law to ensure that UK courts have jurisdiction to hear civil and/or criminal cases against:

— UK-based PMSCs and/or their personnel, for conduct occurring outside the UK's territory or jurisdiction, but in a territory or jurisdiction where no effective remedy is available.

— UK-based PMSCs and/or their personnel, for conduct occurring outside the UK's territory or jurisdiction, but while performing under contract to HMG.

— Directors of UK-based PMSCs for acts and omissions occurring in UK territory or jurisdiction resulting in human rights violations outside UK territory or jurisdiction.

21. Additionally, the FCO consultation document places great emphasis on the prospect of HMG pushing for the development of an international regulatory framework. This is commendable. As Foreign Secretary Miliband correctly asserts in his foreword to the FCO consultation document: "This is a global issue; it requires a global response."[292] As part of its efforts to discharge its duty to protect, HMG could promote such an international regulatory framework through a number of existing or new channels, including the discussion of a Code of Conduct currently being promoted by the Swiss government, the UN Working Group on Mercenaries (which has a mandate from the Human Rights Council, including the UK, to develop an international convention on private military and security companies) or through a bilateral agreement with the U.S. (whose Congress is currently considering legislation directing US Secretary of State Clinton to negotiate such an international regulatory framework).

22. Any effort by HMG to promote such an international framework should be consonant with the Ruggie policy framework. HMG could incorporate the Ruggie framework into its efforts to promote an international regulatory framework, for example by ensuring that discussions at the upcoming Wilton Park Conference being convened by the Swiss government to discuss possibilities for international regulation considers how to ensure such a regulatory framework accords with the Ruggie policy framework. HMG could also encourage the UN Working Group on Mercenaries to look to the Ruggie POLICY framework as a basis for its own work in this area.

Recommendation 3: The Joint Committee on Human Rights should encourage Her Majesty's Government to clarify how any system for the regulation of UK-based PMSCs will allow for effective investigation and prosecution of apparent criminal conduct, either in the UK or elsewhere.

Recommendation 4: The Joint Committee on Human Rights should encourage Her Majesty's Government to incorporate the Ruggie policy framework into its efforts to promote an international regulatory framework for private military and security companies.

Example 2: the corporate Responsibility to Respect and the proposed PMSC "Code of Conduct"

23. Another area where the JCHR may wish to consider the practical opportunities provided by the Ruggie policy framework is in the area of corporate "human rights due diligence" in the UK-based PMSC industry. The latest report by Professor Ruggie to the UN Human Rights Council explains that the concept of "human rights due diligence", within the corporate "responsibility to respect", involves ongoing analysis of a company's operating environment, and not simply a one-off, prior-to-performance scan. The concept, explains Professor Ruggie, involves "a comprehensive, proactive attempt to uncover human rights risks, actual and potential, over the entire life cycle of a project or business activity, with the aim of avoiding and mitigating those risks".[293]

24. While single-company and trade-association Codes of Conduct may be important mechanisms for ensuring such ongoing due diligence, that necessitates establishing an ongoing "feedback loop, alerting Governments, business and society as a whole when all is not well, while providing opportunities for early intervention and resolution before greater harm occurs".[294]

25. For that to occur, a company's human rights due diligence process must consider first, "the country and local context in which the business activity takes place"; second, "what impacts the company's own activities may have within that context, … understanding that its presence inevitably will change many pre-existing conditions"; and third, "whether and how the company might contribute to abuse through the relationships connected to its activities, such as with business partners, entities in its value chain, other non-State actors, and State agents".[295]

26. This all suggests that the Ruggie policy framework anticipates that companies that discharge their responsibility to respect will engage in ongoing assessment of the human rights impacts of their services and relationships. Any industry-wide Code of Conduct should therefore ensure that companies operate on that basis.

27. Absent further detail, it is unclear whether the "Code of Conduct" being promoted by the FCO for the UK PMSC industry will in fact create incentives for UK-based PMSCs to engage in such ongoing human rights due diligence. At present, HMG has simply stated that the "code of conduct will … cover compliance in accepting contracts, incidents and accountability, resource management and responsible behaviour and promote respect for International Humanitarian Law and (IHL) [sic] and Human Rights Law (HRL)".[296]

28. Whether or not such a Code of Conduct will promote company behaviour in line with the Ruggie policy framework will depend on what is meant by "incidents and accountability" and "responsible behaviour". It should be clear that a Code of Conduct which deals only with pre-performance behaviour (such as adoption of internal codes of conduct and ethics, criteria for acceptance of contracts, and vetting, equipping and training of personnel) will not be adequate. To comply with the Ruggie policy framework, any Code of Conduct will need to address ongoing performance by assessing human rights impacts throughout the contract or project period. Such assessment should not rely solely on passive receipt of complaints by the company or its trade association, but should promote proactive human rights impact assessment by the company itself, even in the absence of specific grievances being received.

Recommendation 5: The Joint Committee on Human Rights should seek clarification by Her Majesty's Government of how any "Code of Conduct" for UK-based private military and security companies will ensure they discharge their responsibility to respect human rights, in particular by requiring a process of ongoing human rights due diligence.

Example 3: Access to Remedy and the proposed trade-association-based PMSC grievance mechanism

29. The PMSC Consultation Document proposes that an existing trade association, the British Association of Private Security Companies, monitor the conduct of its members, receive complaints against them, and impose sanctions for their failure to comply with the Code of Conduct.

30. The details of this grievance process are not yet specified—they clearly remain to be considered through the consultation process. However, the costings provided by HMG suggest a somewhat rudimentary investigation and review procedure:

"The trade association estimate [sic] that the setting up of a rigorous internal procedure to adjudicate on alleged breaches of the code would cost about £250,000 p.a., to cover legal advice and the services of a reviewer."

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31. There is no mention made in this impact assessment of financial assistance to complainants, translation services, appeal procedures, raising public awareness of the grievance mechanism, dissemination of its decisions, or conciliation, mediation or arbitration services.

32. It is hard to square such a mechanism, even if it its outlines are still somewhat obscure, with the principles for effective non-judicial grievance mechanisms proposed by Professor Ruggie in 2008:

92. Non-judicial mechanisms to address alleged breaches of human rights standards should meet certain principles to be credible and effective. Based on a year of multi-stakeholder and bilateral consultations related to the mandate, the Special Representative believes that, at a minimum, such mechanisms must be:

Legitimate: a mechanism must have clear, transparent and sufficiently independent governance structures to ensure that no party to a particular grievance process can interfere with the fair conduct of that process.

Accessible: a mechanism must be publicized to those who may wish to access it and provide adequate assistance for aggrieved parties who may face barriers to access, including language, literacy, awareness, finance, distance, or fear of reprisal.

Predictable: a mechanism must provide a clear and known procedure with a time frame for each stage and clarity on the types of process and outcome it can (and cannot) offer, as well as a means of monitoring the implementation of any outcome.

Equitable: a mechanism must ensure that aggrieved parties have reasonable access to sources of information, advice and expertise necessary to engage in a grievance process on fair and equitable terms.

Rights-compatible: a mechanism must ensure that its outcomes and remedies accord with internationally recognized human rights standards.

Transparent: a mechanism must provide sufficient transparency of process and outcome to meet the public interest concerns at stake and should presume transparency wherever possible; non-State mechanisms in particular should be transparent about the receipt of complaints and the key elements of their outcomes.

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33. In particular, additional detail could be provided by HMG to explain how the grievance process envisaged will ensure adequate access for overseas victims of alleged human rights violations committed by UK-based PMSCs. This will need to address issues such as the provision of information about the grievance mechanism to the communities where UK-based PMSCs operate; assistance to overcome barriers of language, literacy, finance and distance; and dissemination of the mechanism's decisions.

34. Additionally, HMG could take steps to ensure that any trade-association-run grievance mechanism has adequately "clear, transparent and sufficiently independent governance structures to ensure that no party to a particular grievance process can interfere with the fair conduct of that process".[299] In his latest report to the UN Human Rights Council, Professor Ruggie added a seventh principle to those listed above, stressing that where companies provide a non-judicial grievance mechanism, "they should operate through dialogue and mediation rather than the company itself acting as adjudicator".[300] Similar concerns might arguably be in play where companies operate a joint non-judicial grievance mechanism, through a trade association, which is the arrangement apparently envisaged by HMG for UK PMSCs. Such considerations are particularly salient given the experience of the PMSC industry association in the U.S. (the International Peace Operations Association), which has been criticized for the opaque manner in which it has handled complaints against its membership, including Blackwater.

Recommendation 6: The Joint Committee should invite the Foreign and Commonwealth Office to clarify how an industry-run Grievance Mechanism for the private military and security industry will ensure respect for the principles of legitimacy, accessibility, predictability, equity, rights-compatibility, transparency and independence outlined in the Ruggie policy framework.

CONCLUSION

35. The Joint Committee on Human Rights' Inquiry into Business and Human Rights provides an important opportunity for ensuring that HMG demonstrates its commitment to the Ruggie policy framework, as HMG works with the PMSC industry to explore more effective regulatory arrangements. The Ruggie policy framework, in turn, could provide important practical guidance to HMG regarding what kinds of regulatory arrangements ought be put in place.

36. There are many ways in which states can work with business actors to provide effective protection of human rights in the PMSC industry, including licensing, registration, certification, auditing, peer-review and individual-complaints-based grievance mechanisms.[301] HMG is to be commended for initiating a discussion about how these arrangements might feasibly be put in place for the UK industry, and globally. At the same time, however, any such effort should be consonant with the broader approach by HMG to "business and human rights" issues, or it will risk creating a perception of policy incoherence.

37. The happy coincidence of the JCHR Inquiry and the PMSC Consultation offers an opportunity for HMG to explore, in very practical terms, how the Ruggie policy framework can guide its efforts to ensure respect for—and promotion of—human rights. The JCHR should seize this opportunity to engage with HMG, to apply the Ruggie policy framework and to assist HMG's laudable efforts to improve standards within the PMSC industry.

James Cockayne

May 2009

282 Foreign and Commonwealth Office, Consultation Document, Consultation on Promoting High Standards of Conduct by Private Military and Security Companies (PMSCs) Internationally, published 24 April 2009, available at www.fco.gov.uk, (hereafter "PMSC Consultation Document") page 3. Back

283 Ibid., page 6. Back

284 Ibid., page 8. Back

285 Further details of how these different aspects of the proposed package would work are set out in PMSC Consultation Document. Back

286 The framework was adopted in a unanimous decision of the United Nations Human Rights Council, of which the UK was a member at the time (and remains a member). Back

287 Professor Ruggie has himself referred to the regulation of PMSCs in his own submissions to the Human Rights Council. See for example "Business and Human Rights: Mapping International Standards of Responsibility and Accountability for Corporate Acts", UN Doc. A/HRC/4/035, 9 February 2007, pp. 17-18. Back

288 United Nations, "Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises", UN Doc. A/HRC/11/13, 22 April 2009, page 7. Back

289 PMSC Consultation Document, page 12. Back

290 See James Cockayne and Emily Speers Mears, "Private Military and Security Companies: A Framework for Regulation", International Peace Institute, March 2009, available at www.ipinst.org. Back

291 PMSC Consultation Document, page 9. Back