Welcome to ICoCA’s podcast series Future Security Trends Implications for Human Rights. We’re marking the 10th anniversary of the International Code of Conduct Association. We’re talking to the people who were involved right from the beginning, and today I am delighted to be talking to Mark DeWitt, who is chief legal officer and general counsel at Gardaworld Federal Services. Mark was on the first intake of the ICoCA’s board of directors and played an instrumental role before the association was founded.
Can you just tell us what the impetus for the International Code of Conduct coming from the industry at that time, was and what year are we talking about?
Well, I think from the perspective of where I came into this, two inflection points were happening. We had, before 2007, largely with the US involvement in Iraq and Afghanistan, a surge of companies showing up and looking to do security work, and there were a fair number of those companies that were what I would call a little bit fly-by-night. Concerns had emerged within the industry that there needed to be a way to segregate the companies that had a very thoughtful, proactive, and human rights-focused approach to the work from the ones that didn’t. There had been some efforts on the US side to look at regulatory possibilities with Congress through industry associations. But in 2007, of course, we had the incident involving Blackwater that put things in a much sharper contrast and created a knowledge of the industry and some questions that needed to be addressed. On the US side, we were talking about then-Senator Clinton proposing legislation to eliminate the industry. For example, you were talking about the UN Working Group on mercenaries looking at the industry. But thankfully, at the same time, there was the Montreux Document coming into being, and that gave us an opportunity in 2009 to have a “what comes next” discussion. Out of that came a statement from three industry associations for a desire to have a code of conduct. That was a fortuitous time because it allowed us to identify something we could participate in and start to work towards the goals that had been forming within the industry for a few years before that.
There were three industry associations involved in that meeting. Who were the three?
One was what was then called IPO, International Peacekeeping Operations Association, which is now known as Isoa International Stability Operations Association, which is based out of Washington, D.C. Bapsi, which was a British association of private security companies. The third was the Pan-American Security Association. Those happen to be the three industry associations that were represented in that meeting in 2009. A joint statement was put out between the three asking the Swiss government to help lead the drafting of a code of conduct.
What were the other kinds of regulatory options that were on the table at that time? How was it that a voluntary mechanism was the tool of choice for industry? Was it and if so, why was it?
Up is the best choice. As I mentioned, we had looked at some regulatory efforts via the US Congress. That’s a difficult road to go down to get all the parties that you need on board with something along those lines. At the time, the UN Working Group on mercenaries was looking at a potential draft treaty. That was a process that the industry was not going to be involved in. There were certainly conversations that occurred, one of which I participated in with that group. But that was a process that was not going to reflect our input. You’re also talking about an industry that operates all over the globe with all different kinds of clients. Even, a US government-focused solution was probably going to be too narrow. Above all, the process needed some credibility. As a result, the opportunity for the industry to work with governments, with civil society, and take all of those viewpoints and develop a code, was very appealing as a process in which industries could have a voice in and help develop a solution that worked.
Can you tell us a little bit more about the negotiation that took place? What were the dynamics like? Were there any tension points? How did it pan out?
It was a trust-building process at the start. Whenever we moved from signing the code to creating the association, we did a first draft of the charter for the Association that was very detailed. It was universally rejected. If you want to talk about compromise, of making no one happy; we achieved that goal. I think it pointed to the fact that we needed to focus on a governing framework. What are the things that we agreed on that we wanted to accomplish? I’ll give you two examples. One was certification and monitoring. That became a very complicated topic because there were goals that civil society had and things they wanted to see. Meanwhile, there were goals that governments wanted, specifically the US government and things that they wanted to see. The industry had some considerations of its own so there was a lot of back and forth on that topic. The grievance mechanism was another one. There was a lot of discussion about where should a grievance mechanism come into play because you need to keep in mind that a lot of what the code was focused on was security operating in complex environments, conflict zones, areas where the rule of law is maybe not as effective as you would like it to be. These are the kinds of things where there was an interplay, where we had to decide what kind of role the code and the association were going to play and where and how it would operate. So there were some tensions where we had to work through these kinds of issues.
Just stepping back again, was the negotiation for the code itself as complicated a process if you compare those two negotiations? Which was easier to settle on?
The negotiation for the code. There were components of it that were complicated. One interesting thing that I think surprised some people was what industry wanted to put into the code, which went beyond the human rights aspects, to talking about how the industry should operate. Talking about the use of uniforms, about discrimination, about a variety of topics that I wouldn’t call within the core human rights aspects that maybe some of the other parties went into thinking it was going to be about. That introduced some complexity, but it was relatively easy to navigate compared to when we got into developing the charter because that was about: how are we going to make all of these principles come to life. The charter ended up being the much more complicated of the two to accomplish. You just considered a timeline. We started talking about a code of conduct in June 2009, and we signed it in November 2010. From roughly that point in time, November 2010, to creating the association in September 2013. It took us almost three years to get there which was reflective of the complexity of the two.
How was the certification scheme conceived and what other options were discussed? Why was certification seen as an important element to include?
When we were negotiating the code there was a point to resolve. That became somewhat complicated. On the one hand, you had civil society talking about monitoring, pointing to things such as the Fair Labor Association and, to a lesser extent, the voluntary principles, and saying this is the direction we think we should be going. On the other side, you had the government, largely the US government, talking about how they wanted objective and auditable standards or a code so they could use that to incorporate into contracts and measure and verify the companies that were complying. You had these two objectives that on the surface would sound the same. However, once you got into the details, they were pointed in a different direction. What we ended up doing is essentially incorporating both of them, having the concept of certification so that a company can do its homework and have someone verify that they implemented what needs to be implemented within the code to get certified. Then on top of that, have the association do certification and monitoring to ensure that there’s consistency and that the standards are being met to the level that the association would like to see. That’s how we ended up in that context. The US Congress and the Department of Defense provided funding for the development of the initial private security company standard PSC.1, which eventually evolved into the ISO standard and the certification scheme that sits outside of the association. But that complements it. It was those two competing approaches to what monitoring and certification would be that led to how we approach that topic.
To be continued next week!
The views and opinions presented in this article belong solely to the author(s) and do not necessarily represent the stance of the International Code of Conduct Association (ICoCA).