DCAF Privatisation of Security Programme

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GENEVA CENTRE FOR THE DEMOCRATIC CONTROL OF ARMED FORCES (DCAF) DCAF Privatisation of Security Programme CHALLENGES & RESPONSES DCAF Privatisation of Security Programme Overview: general challenges

1 GENEVA CENTRE FOR THE DEMOCRATIC CONTROL OF ARMED FORCES (DCAF) DCAF Privatisation of Security Programme CHALLENGES & RESPONSES DCAF Privatisation of Security Programme Overview: general challenges presented by PSCs The privatization of private security services, now occurring on a mass-scale, seriously challenges the traditional notion of the State Monopoly on the Use of Force. The consequences of this we are only now beginning to grasp, with issues such as impunity, challenges to the rule of law and even state-wrecking coming to the fore. While we cannot turn back the clock, these serious challenges require equally serious parliamentary action to rein in the activities of private security companies (PSCs), and in so doing fulfil the parliamentary responsibility of security oversight. We would like to bring your attention two main challenges regarding PSCs: (1) contracting out can create a democratic deficit; (2) accountability of PSCs for violations of criminal and human rights law. Challenges: contracting out security and the democratic deficit The inherent nature and dynamics of the private security sector present strong challenges to effective parliamentary oversight. Most serious of these challenges is the lack of quality information and transparency regarding the nature and scope of PMSC personnel, rules and practices. Complicated further by complex legal and technical issues, the problem of subcontracting (or even sub-sub contracting, etc.) [Article 26] which blurs lines of responsibility as well as by the wide diversity and lack of coordination among these non-state actors, this makes it very difficult for parliamentarians to work effectively unless they can avail themselves of independent information and oversight. Responses: DCAF's Privatisation of Security Programme The Privatisation of Security has been on DCAFs radar screen for several years, forming one of our core areas of focus. Our responses have clustered under the categories of policy studies and capacity building. 1. Policy Studies

2 For example, In 2006 DCAF completed a study for the Council of Europe entitled Regulating Private Security in Europe. The study had as its objective to examine 'recent developments in [the field of private security companies in CoE member states 1 ] including examples of good practices and ways and means to enable an exchange of the practices in question.' Among the findings of the study - There is abundant member state regulation of the domestic security services, but this varies widely from state to state. - No harmonisation of legislation concerning the private security industry at the European level has yet taken place, but the European Commission for Human Rights has set standards for private actors 2. Capacity Building - On numerous occasions, DCAF has acted in an advisory capacity on draft laws to parliamentarians - In partnership with the Swiss DFA, DCAF is currently developing a website devoted to the regulations governing PMSCs and their activities, located at The heart of the website is the PMSC Regulation Database, which contains more than 150 laws and regulations from over 60 countries, as well as soft-law guides of principles, codes of conduct and expressions of good practices. The website will also offer topic guides on important PMSC issues and legal commentaries on selected PMSC regulation. European Standards on Human Rights and Private Actors - The European Commission for Human Rights held that: - the rights and freedoms defined in the Convention requires States to take measures to ensures that individuals within their jurisdiction are not subjected to [violations] administered by private individuals This means that States have to put in place laws that will effectively regulate actors such as private security actors to ensure that they will act in accordance with international standards, in particular European Human Rights standards. On that note, we are pleased that Kosovo has gone to some lengths to craft a modern law to regulate private security. It is to this subject that I will turn my attention to now. 1 This study specifically excluded the export of these services beyond member states borders. 2

3 Responses: Kosovo Draft Law A Good Start Strengths I have had the opportunity to read your draft law on private security, and my first reaction is to commend your efforts. This law contains many innovative and cutting-edge features important to regulating and overseeing private security providers, and I would like to begin by highlighting some particular strengths in this law that I found impressive. - Clear definition of private security services found in Article 5 of the draft law: i. Body guarding ii. Property protection iii. Protection for transport of valuable cargo iv. Security at public events v. Electronic Surveillance vi. This is important because of the implied limitation of private security activities which has been set by parliament, or in other words, as democratically-elected representatives, you are expressing the will of the people on the activities that are appropriate for PSCS. - Licensing: the draft law requires distinct licenses for each of the services listed above. I find this approach to be quite innovative as well as logical, requiring that pscs fulfil minimum requirements for training and number of staff in order to have the capacity to perform in an acceptable manner private security activities - Identification cards: it is essential that those persons able to use force in the course of their duties be easily identifiable by those against whom they use force, and this is a point to which I will return a little later. - Public Oversight: I am glad to see that the Ministry of Internal Affairs will retain final say over the issuance of licences, identity cards, and will appoint the body who sets the standards for the industry. Taken together, these strengths are a very good start to effectively regulating private security service providers, helping to ensure that they perform their functions in accordance with fundamental principles of international human rights. To bolster their effectiveness, I would like to bring your attention to some gaps or weaknesses I came across in the draft law, which if not addressed before the passage of the final bill, could undermine its effectiveness. [Caveat: as I 3

4 was working on an unofficial translation of the draft law, it could be that certain legal terms were not quite correctly translated, and so I apologise if I comment on something that was addressed in the original language] Weaknesses - Licensing: Particular licenses are not required stricto senso for individuals to perform particular security activities. Instead, there are incomplete requirements listed that have not yet listed all of the educational requirements. - Conflicts of interests: there is no prohibition on PSC personnel from performing other potentially-conflicting roles (e.g., police example because of some of the overlap between duties of PSCs and police, this may create conflicts between the actors. Also, if PSCs are paid a great deal more than police, this may create resentments) - Identification: individual security personnel not required to wear badges displaying clear identifying information (e.g., name, employee number). This is VERY IMPORTANT. If a private security actor commits a violation against a person, it is unlikely that he will pull out his identifying card from his wallet and share this with his victim. Private security personnel should be easily identifiable, such that a person in reasonably close proximity can read his name. This also has a huge preventive effect ps actors are less likely to commit abuses if they can be easily identified. - Whistleblower protection: it should be stated clearly in Article 27 which governs the preservation of professional secret that information pointing to wrongdoing or violations is not part of professional secret, and furthermore that employees exposing such wrongdoing will receive protection under the law (so that they will not be punished, and not be dismissed) - Lack of explicit reference to particular standards and guiding principles which will govern this industry, such as the European Convention on Human Rights. The vague reference that European experiences and standards will be taken into consideration leaves a lot of room to not apply these standards. - Scarcity of democratic accountability: no direct involvement of parliamentary committees or parliamentary appointed ombudsmen to oversee private security activities, and ensure that they are performed in accordance with the law - Scant information on the regulation of the use of firearms and weapons - this is key to maintaining the State Monopoly on the Use of Force. The law only requires 4

5 that ps personnel use weapons in accordance with the law on weapons. While I am not familiar with the law on weapons, armed private security actors will more likely and more often face situations in which force could escalate, and therefore should be subject to specific regulations recognising this reality. Recommendations: based on our experience with the private security sector, we would like to make a few suggestions that we see as helping your good start become a great law. - Individual Licensing: All PS personnel should be required to be individually licensed for each individual private security activity by the Ministry of the Internal Affairs before performing such activities for a PSC - Identification: All PSC personnel should be required to wear large, personallyidentifying badges at all times when performing security services - Whistleblower protection: personnel who report to the authorities on any PSC violations should be protected from retribution, such as dismissal from employment. - Democratic accountability: Procedures, such as regular reports to a parliamentary oversight committee specialised on private security, should be required. - Vetting: develop procedures to effectively vet foreign PSC applicants, particularly those foreign security workers providing security services on the ground - Standard setting: explicit references in the law that all professional standards and training will be in accordance with statements made by the EU and CoE on private security - Human rights standards: Explicit statements that all professional standards and training will be in accordance with the European Convention for the Protection of Human Rights, in particular: i. Right to liberty and security art 5 ii. Right to privacy art 8 iii. Right to freedom of assembly art 11 iv. Prohibition on discrimination, including racial and ethnic profiling art 14 This would require clear procedures for holding violators of such human rights accountable, and clear mechanisms for providing oversight (regular reports, investigative procedures) 5

6 Conclusion The Way Forward As a final note, if there is one thing that you take away from my presentation, it is the notion of accountability in regards to private security actors. This notions is important on two levels, both Democratic or political accountability of private security actors to civil society through you, their democratically-elected representatives, and personal or individual accountability of the private security providers for any violations or wrongdoing they commit. The first type of accountability can be accomplished by incorporating parliamentary oversight mechanisms, including surprise visits, as well as a master database of all actors engaged in providing security services. The second type of accountability can be reinforced first by setting a high bar of admission for those who want to provide private security services, including extensive training requirements, as well as publicly administered licensing exams sort of like drivers licences for private security providers. Secondly, I can t underestimate the importance that the private security workers be personally identifiable. This will go a long way towards prevention of violations. Incorporating such protective mechanisms into the draft law will help this good start on private security regulation become a good law, and help Kosovo fulfil its obligation imposed by the European Commission on Human rights to take measures to ensure that individuals within their jurisdiction are not subjected to [human rights violations] administered by private individuals. 6

Bern I Geneva, 23 November 2012

Schweizerische E1dgenossenschaft Confl!deration su1sse Confederazione Svizzera Confederaziun svizra Federal Department of Foreign Affairs FDFA ICRC Bern I Geneva, 23 November 2012 To Montreux Document