The use of private military and security companies (PMSCs) worldwide is increasing. Since the early 1990s, the global private security industry has been expanding significantly in response to increasingly complex security environments, ranging from conflict or post-conflict situations to growing terrorism threats and humanitarian crises.
In the Latin America and Caribbean region for instance, at least 16,174 private security companies have been identified, with more than 2,450,000 legal employees working as security guards. Today it is not rare to have states with a higher ratio of private security personnel to police. PMSCs have adapted their services and operations to this context; nevertheless, some PMSCs have also attracted increasing international attention due to misconduct, human rights abuses, and violations of international humanitarian law.
For example, PMSCs provide operational support to a number of asylum seeker and immigration detention centers. Human rights organisations are concerned about the numerous reports of serious human rights violations and relative lack of monitoring and oversight of private security personnel managing and operating these centres. Abuse of detainees has raised serious ethical and legal questions and facilities with armed guards lead to concerns over the use of force. Furthermore, the transparency of contracts between private security companies and governments has also been questioned.
PMSCs offer an increasingly wide range of services, such as providing security to critical infrastructure, personnel, businesses and large multinational industries. PMSCs are also contracted to provide military operational support, training, and risk analysis for national armed forces or national police in very different contexts, including in situations of armed conflict or other situations of violence, both in international or domestic settings. Widely publicized human rights abuses suffered by civilians in Afghanistan and Iraq focused global attention on the international PMSC industry, highlighting a situation in which these actors seemed to operate in a legal and regulatory vacuum.
The importance of establishing public contracting guidelines for PMSCS
With such a diversity of private security providers and services, it is unclear for many contracting officers and procurement officials how to integrate the protection of and respect for human rights and international humanitarian law (IHL) into contracts with PMSCs. Guidance is lacking on how potential PMSC contractors should be vetted and selected, as well as how contracts should be drafted, implemented, and monitored, leaving unanswered key questions such as:
- How can the bidding process provide safeguards that PMSCs will respect human rights and international humanitarian law?
- Why should contracting officers avoid “lowest price criteria” when it comes to the selection of PMSCs?
- How can the contract itself include provisions on the respect of human rights and IHL?
Through commercial incentives and restrictions, public purchasers undertake a crucial role in inducing private security providers to adhere to relevant human rights regulations.
At the same time, PMSCs can have a significant impact on the reputation and operations of their public clients. Yet there is still a lack of shared information and experience to support formulation of adequate guidelines and a lack of awareness of the possible legal and reputational implications. What is needed is practical, unified guidance and functional tools that can be used when contracting private security services.
Objectives of DCAF’s Contract Guidance Tool
To help address the above challenges, the Geneva Centre for the Democratic Control of Armed Forces (DCAF) has developed a Contract Guidance Tool, which supports contracting officers in implementing processes that integrate the protection of human rights when contracting private security services for their operations.
Developed with the support of the Swiss Federal Department of Foreign Affairs, the Contract Guidance Tool draws on leading international norms and standards to reflect the principles of responsible procurement and contracting practices. The Tool was also developed in the framework of the Montreux Document Forum, which brings together all 54 States and 3 international organisations to engage in dialogue on outreach and implementation of the international rules and good practices on PMSCs as contained in the Montreux Document.
In essence, the Tool aims to support states and international organisations in promoting respect for human rights by business enterprises with which they conduct commercial transactions. This has a strong international basis in the UN Guiding Principles on Business and Human Rights (UNGPs), implementing 31 principles on the issue of human rights and transnational corporations and other business enterprises according to the UN ‘Protect, Respect and Remedy’ framework, as well as the Sustainable Development Goals, featuring 17 measurable goals, including the promotion of peaceful and inclusive societies for sustainable development, provision of access to justice for all and building effective, accountable and inclusive institutions at all levels (goal 16).
The Contract Guidance Tool provides clear and practical guidelines for national contracting officers or procurement specialists. The main objectives of the tool are:
- To raise awareness on the key role of effective contracting processes which integrate respect for human rights and IHL based on lessons and good practices from existing contracting procedures.
- To provide simple, concise and practical guidance for states, as well as international organisations, humanitarian organisations and NGOs on structuring their contracts and contracting procedures for private military and/or security services, drawing on international norms and standards, in particular the UNGPs and the Montreux Document on Private Military and Security Companies.
The Contract Guidance Tool is divided into two sections:
- Part 1 covers the bidding and selection process: including the development and publication of the request for proposals (RfP) and the selection of potential contractors. Part 1 is complemented by a checklist that the user can consult when undertaking a bidding and selection process of potential PSMC contractors.
- Part 2 offers guidance on the drafting of the contract itself. This section contains an explanatory note and a model contract that reflects internationally recognised good practices, which can be adapted by the client as appropriate to context and needs.
The need for more precise guidance on the contracting process has been identified through the DCAF study “Putting Private Security Regulation into Practice: Sharing Good Practices on Procurement and Contracting”, which analyzed the policies of international organisations and states on private security procurement and contracting.
The tool will be officially presented at the occasion of the next workshop hosted by the International Learning Lab on Public Procurement and Human Rights to be held in Pretoria, South Africa on 13 November 2017 . The workshop will bring together relevant stakeholders to explore ways to use public procurement laws, policies, and practices to operationalize the UN Guiding Principles on Business and Human Rights and the Sustainable Development Goals, and will provide a brief introduction to the procurement process and relevant international and regional frameworks.
The Geneva Centre for the Democratic Control of Armed Forces (DCAF) is an international foundation whose mission is to assist the international community in pursuing good governance and reform of the security sector. The Centre provides in country advisory support and practical assistance programmes, develops and promotes norms and standards, conducts tailored policy research and identifies good practices and recommendations to promote democratic security sector governance.
DCAF’s Public-Private Partnerships (PPPs) Division provides an in-house focus to the organisation’s efforts to create synergies between public and private actors with a role in security sector reform and governance. The PPPs Division plays a leading role in improving oversight and accountability of the private security industry and works with companies, in particular the global extractives industry, to promote SSR-related good practices.
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