Regulating war: A taxonomy in global administrative law

European Journal of International Law

Volumn 22, Issue 4, 2011, Pages 1027-1069

  Richemond Barak, Daphné ^a  

^a INTERDISCIPLINARY CENTER   (Israel)

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[No Author keywords available]

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EID: 84855227995     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chr087     Document Type: Article

References (192)

1. 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 ('Montreux Document'), adopted on 17 Sept. 2008, 13 J Conflict Security L (2008) 451, at 453 defines private military and security companies as 'private business entities that provide military and/or security services, irrespective of how they describe themselves.
2. Military and security services include, in particular, armed guarding and protection of persons and objects, such as convoys, buildings and other places; maintenance and operation of weapons systems; prisoner detention; and advice to or training of local forces and security personnel.'
3. de Nevers, '(Self) Regulating War?: Voluntary Regulation and the Private Security Industry', 18 Security Stud (2009) 479
4. Ranganathan, 'Between Complicity and Irrelevance? Industry Associations and the Challenge of Regulating Private Security Contractors', 141 Georgia J Int'l L (2010) 303
5. Hoppe and Quirico, 'Codes of Conduct for Private Military and Security Companies: The State of Self-regulation in the Industry', in F. Francioni and N. Ronzitti (eds), War by Contract (2011), at 362.
6. It should however be noted that the connection between the emerging field of global administrative law and the private military industry has been made in the past - in particular by the Institute for International Law and Justice at New York University, as explained in greater length in sect. 2C below.
7. This refers to the United Nations Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the rights of peoples to self-determination
8. See http://www2.ohchr.org/english/issues/mercenaries/index.htm.
9. In Judges, it is mentioned that Hebrew leaders in 1250 BC supplemented their armies with men hired for pieces of silver. When the Hebrews fought the Philistines, King Saul also had recourse to mercenaries (Samuel I, 15:52).
10. See N. Machiavelli, The Prince (1513) 55-56 (1513, 2005 edn).
11. See, e.g., GA Res 2395 (XXIII), UN Doc A/2395 (1968); GA Res 3396 (XXX), UN Doc A/3396 (1975) (Question of Southern Rhodesia); SC Res 405, UN Doc S/RES/405 (1977) (Benin); and SC Res 507, UN Doc S/RES/507 (1982) (Seychelles).
12. See, e.g., Transforming Wartime Contracting: Controlling Costs, Reducing Risks, Final Report to Congress, Commission on Wartime Contracting in Iraq and Afghanistan (2011), at 18.
13. See Cronin, 'Rights: Violations Privatized Away', Inter Press Service News Agency, 10 Feb. 2009 (notes that about 85% of private security firms are based in either Britain or the US).
14. See, e.g., Fairweather and Tibbetts, 'British Guard Killed in Iraq Ambush', Daily Telegraph, 24 Mar. 2004.
15. See Bearpark and Schulz, 'The Future of the Market', in S. Chesterman and C. Lehnardt (eds), From Mercenaries to Market (2002), at 240, 247.
16. See O'Reilly, '"Eye Spy Private High", Re-Conceptualizing High Policy Theory', 46 Brit J Criminology (2006) 641, at 648 (listing bodyguard services, business intelligence, confidential investigations, corporate advisory and restructuring services, crisis management and response, fraud prevention, kidnap and ransom advice/negotiation services, political and security risk analysis, and the safeguarding of intellectual property and corporate brands)
17. See 'Military for Hire', ABC News, 18 Sept. 2007, available at: http://abcnews.go.com/WN/IraqCoverage/story?id=3619090&page=1.
18. Brooks, 'Messiahs or Mercenaries? The Future of International Private Military Services', 7 International Peacekeeping: Managing Armed Conflict in the 21st Century (2009) 129, at 129
19. See, e.g., 'BP at War', Economist, 17 July1997, available at: www.economist.com/node/151558.
20. 'Outsourcing War', BusinessWeek Online, 15 Sept. 2003, available at: www.businessweek.com/magazine/content/03_37/b3849012.htm.
21. Schrader, 'U.S. Companies Hired to Train Foreign Armies', Los Angeles Times, 14 Apr. 2002, at 4.
22. See, respectively, Chesterman, '"We Can't Spy If We Can't Buy!": The Privatization of Intelligence and the Limits of Outsourcing Inherently Governmental Functions', 19 EJIL (2008) 1055
23. Fainaru and Klein, 'In Iraq, A Private Realm of Intelligence-Gathering', Washington Post, 1 July 2007
24. 'Ex-CIA Worker Sentenced in Afghan Beating', CBS News, 13 Feb. 2007 available at: www.cbsnews.com/stories/2007/02/13/national/main2471092.shtml?source=RSSattr=HOME_2471092.
25. In 2004, Aegis was awarded a $300 million contract to supervise 50 other private security and military companies operating in Iraq. See infra notes 243.
26. See also Singer, 'Nation Builders and Low Bidders in Iraq', New York Times, 15 June 2004
27. See P. Singer, Corporate Warriors: The Rise of the Privatized Military Industry (2003), at 76.
28. Haynes, 'Private Guards Set for Bigger Role Despite Fury at Blackwater Deaths', TimesOnline, 15 Oct. 2007, available at: www.nytimes.com/2004/06/15/opinion/nation-builders-and-low-bidders-in-iraq.html.
29. Hersh, 'Torture at Abu Ghraib', New Yorker, 10 May 2004
30. Witte and Merle, 'Contractors Are Cited in Abuses in Guantanamo', Washington Post, 4 Jan. 2007.
31. Lagerquist and Steele, 'Group 4 Security Firm Pulls Guards Out of West Bank', Guardian, 9 Oct. 2002.
32. Bennett, 'Victims of an Outsourced War', Time, 15 Mar. 2007.
33. Pfeffer, 'Security Guards Shoot Palestinian at West Bank Checkpoint', Haaretz, 27 Apr. 2009.
34. See also Ronen, 'Israel: The Use and Regulation of Private Military and Security Companies in Situations of Armed Conflict' (2010) (on file with author)
35. See Programme on Humanitarian Policy and Conflict Research, 'Private Security Companies in the OPT' (2008), available at: http://opt.ihlresearch.org/index.cfm?fuseaction=Page.viewPage&pageId=1640.
36. 'Private Military Companies, Response to the Secretary of State for Foreign and Commonwealth Affairs', Ninth Report of UK Foreign Affairs Committee (2002) ('Green Paper'), available at: www.fco.gov.uk/Files/kfile/mercenaries, O.pdf, at para. 56.
37. Singer, 'Outsourcing The War', Salon.com, 16 Apr. 2004, at 3, available at: http://dir.salon.com/news/feature/2004/04/16/outsourcing_war/index.html.
38. Verloy, 'Making a Killing: Private Military Firms Say They are the Future of Humanitarian Intervention in Africa', New Internationalist (2004)
39. Singer, 'Peacekeepers, Inc.', 119 Policy Rev Online (2003) 5.
40. See 'G4S Buys Security Firm Rival ArmorGroup for £43m', TimesOnline, 21 Mar. 2008, available at: http://business.timesonline.co.uk/tol/business/industry_sectors/support_services/article3593666.ece.
41. See Klinger, 'ArmorGroup Wins $7 Million Sudan Contract', The Times, 14 July 2006
42. See, generally, Hukill, 'Should Peacekeepers Be Privatized?', 20 Nat'l J (2004) 1526
43. McLaughlin, 'Guns For Hire Thrive in Africa', Christian Science Monitor, 15 Mar. 2004.
44. For more on private military contractors and peacekeeping operations see Richemond-Barak, 'The New Peacekeepers? Private Military Companies and the Future of Peacekeeping Operations', European Society of International Law Paper Agora Series (2007), available at: www.esil-sedi.eu/fichiers/en/Agora_Richemond_358.pdf.
45. Lehnardt, 'Peacekeeping', in S. Chesterman and A. Fisher (eds), Private Security, Public Order: The Outsourcing of Public Services and Its Limits (2009), at 205.
46. Fennell, 'Private Security Companies: The New Humanitarian Agent', Presentation to the Conference on Interagency Co-ordination in Complex Humanitarian Emergencies, 19 Oct. 1999, at Cranfield University/Royal Military College of Science, Shrivenham, Wilts.
47. Singer, 'Should Humanitarians Use Private Military Services?', Humanitarian Aff Rev (2004) 14
48. See F. Schreier and M. Caparini, Privatizing Security: Law, Practice and Governance of Private Military and Security Companies (2005), at 32.
49. O'Brien, 'PMCs, Myths and Mercenaries: The Debate on Private Military Companies', Royal United Service Institute J (2000), at 7
50. See NPR, 'Private Military Firm Pitches Its Services in Darfur', 26 May 2006, available at: www.npr.org/templates/story/story.php?storyId=5433902.
51. See, respectively, 'The Baghdad Boom', Economist, 25 Mar 2004
52. Mayeda and Blanchfield, 'Military Should Shed More Light on Private Contractors to Afghan Mission', Can West News Service, 20 Nov. 2007, available at: www.canada.com/story_print.html?id=2c4e93d3-253d-422a-86a8-71ebe7d04d71&sponsor= (a large Canadian engineering company, SNC-PAE, employed under the Canadian Forces Contractor Augmentation Programme, has built its own military-like base in Kabul).
53. 'Military-Industrial Complexities', Economist, 27 Mar. 2003.
54. For a list of early works in the field of global administrative law see www.iilj.org/gal/bibliography/GALBib-IHistorical.asp.
55. See Kingsbury, Krisch, and Stewart, 'The Emergence of Global Administrative Law', 68 L & Contemp Probs (2005) 15, at 15 (defining the Global Administrative Law Research Project at NYU as 'an effort to systematize studies in diverse national, transnational, and international settings that relate to the administrative law of global governance')
56. Kingsbury, Krisch, Stewart, and Wiener, 'Foreword: Global Governance as Administration - National and Transnational Approaches to Global Administrative Law', 68 Law & Contemp Probs (2005) 1, at 5
57. See, e.g., www.css.ba/projects/index.html (the Centre for Security Studies in Sarajevo notes that its code 'is intended for use in addition to national legislation and all firms should also meet the basic conditions imposed by national legislation, complying strictly with both their spirit and the letter') (emphasis added).
58. Kingsbury, 'The Concept of "Law" in Global Administrative Law', 20 EJIL (2009) 23, at 26
59. See, generally, Benvenisti, 'The Interplay Between Actors as a Determinant of the Evolution of Administrative Law in International Institutions', 68 Law & Contemp Probs (2005) 319
60. Meidinger, 'The Administrative Law of Global Private-Public Regulation: The Case of Forestry', 17 EJIL (2006) 47
61. Barr and Miller, 'Global Administrative Law: The View from Basel', 17 EJIL (2006) 15
62. See, e.g., Clapp, 'The Privatization of Global Environmental Governance: ISO 14000 and the Developing World', 4 Global Governance (1998) 295.
63. Craik, 'Deliberation and Legitimacy in Transnational Environmental Governance', IILJ Working Papers 2006/10 (Global Administrative Law Series) (2006)
64. Mattli and Büthe, 'Global Private Governance: Lessons from a National Model of Setting Standards in Accounting', 68 Law & Contemp Probs (2005) 229
65. Blackett, 'Global Governance, Legal Pluralism and the Decentered State: A Labor Law Critique of Codes of Corporate Conduct', 8 Indiana J Global Legal Stud (2001) 401
66. See also Krisch and Kingsbury, 'Global Administrative Law: The Quest for Principles and Values', 17 EJIL (2006) 187
67. 'Global Administrative Law - Resources, Concept and Working Definition', at 2, available at: http://iilj.org/GAL/GALworkingdefinitionoteasp.
68. See www.fsc.org/about-fsc.html.
69. See infra note 89
70. Copenhagen Accord, Draft Decision -/CP.15, FCCC/CP/2009/L.7, 18 Dec. 2009.
71. For more information on the project see www.iilj.org/research/PrivateMilitaryandSecurityCompanies.asp.
72. I must point out that, in spite of the distinct advantages of the GAL analysis, the regulation of the private security and military industry may be examined independently of GAL
73. It is important to note, however, that within each regulatory mode (i.e., industry associations or contracts) I do not intend to provide an exhaustive survey of all existing regulation. While I do try to be as thorough as possible, the emphasis is on the identification of the various modes of administration rather than on a comprehensive study of each of these modes. For example, when discussing company codes of conduct, I analyse some of these codes, but not all existing codes.
74. See the US Arms Export Control Act of 1968, 22 CFR 120-130 (which, together with the International Transfer of Arms Regulation (ITAR) designed to implement the Act, regulates foreign sales of certain non-US defence articles and services by the US government)
75. For more information see D. Avant, The Market For Force (2005), at 147, 149-151.
76. See also the Military Extraterritorial Jurisdiction Act ('MEJA') of 2000, Pub. L. 106-523 (106th Congress); 18 USC 3261 (which establishes federal jurisdiction over offences committed outside the US by persons employed by or accompanying the armed forces as well as former members of the US armed forces).
77. For more information see Caparini, 'Regulating Private Military and Security Companies, The US Approach', in A. Alexandra, D.-P. Baker, and M. Caparini (eds), Private Military and Security Companies, Ethics, Policies and Civil-Military Relations (2008), at 171.
78. MEJA's extraterritorial jurisdiction allows for the prosecution of contractors employed by the US Department of Defense in US federal courts. In an effort to enhance the accountability of military contractors, MEJA's jurisdiction was extended to all federal contractors (not just those hired by the Department of Defense) hired by a US department or agency in contingency operations such as Iraq and Afghanistan, provided that their employment 'relates to supporting the mission of the Department of Defense overseas'. See MEJA Expansion and Enforcement Act of 2007, H.R. 2740, 110th Congress, 1st session, 4 Oct. 2007; US House of Representatives Committee on the Judiciary, Press Release, 'House Passes Military Contractor Legislation', 4 Oct. 2007; Press Release, 'IPOA Formally Endorses H.R 2740', 2 Oct. 2007.
79. See also the Uniform Code of Military Justice (UCMJ), Pub. L. 109-364 (subjecting civilians supporting the armed forces to prosecution by court-martial).
80. For more information see Mangan, 'Conflicts of Laws, UCMJ and MEJA Challenge for Legal Supremacy', 2 J Int'l Peace Operations (2007) 23
81. Witte, 'New Law Could Subject Civilians to Military Trials', Washington Post, 15 Jan. 2007, available at: www.washingtonpost.com/wp-dyn/content/article/2007/01/14/AR2007011400906.html.
82. The UCMJ, which had applied only with respect to declared wars, was amended to cover cases of contingency operations. The purpose of the amendment was to include private military contractors working in Afghanistan and Iraq within the scope of the UCMJ.
83. For more information see Singer, 'The Law Catches Up to Private Militaries, Embeds', DefenseTech (2007), available at: http://defensetech.org/2007/01/03/the-law-catches-up-to-private-militaries-embeds/.
84. See Regulation of Foreign Military Assistance Act of 1998 (South Africa), which prohibits the recruitment, use, training, and financing of mercenaries and regulates the provision of military and military-related services by South African citizens and foreigners found within South African territory. The Act (Arts 3-5) establishes an authorization process through which an individual or a company may be accredited to render foreign military assistance. Under the Act, such authorization is not transferable, in order to avoid some of the problems arising out of subcontracting and companies' re-birth (Art. 5(4)). The Act's extraterritorial scope of application, in particular, shows South Africa's determination to bring an end to mercenary activity and regulate private military contractors, not only when such activity takes place on its own territory, but also when its citizens are hired abroad.
85. Although it remains limited, the importance of domestic legislation dealing specifically with modern forms of military outsourcing should not be undermined: it demonstrates that states treat private military contractors and mercenaries as distinct legal entities
86. See infra sect. 2C.
87. HRC Res 2005/2, UN Doc E/CN.4/Res 2005/2 (7 Apr. 2005).
88. Mr. Enrique Bernales Ballesteros (Peru) served as Special Rapporteur from 1987 to 2004 and Ms. Shaista Shameem (Fiji) from 2004 to 2005.
89. HRC Res 7/21, UN Doc A/HRC/RES/7/21(28 Mar. 2008).
90. UN Doc A/HRC/RES/7/21, Mandate of the Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination (28 Mar 2008)
91. See www2.ohchr.org/english/issues/mercenaries/wgissues.htm.
92. See www2.ohchr.org/english/issues/mercenaries/annual_reports.htm.
93. See www2.ohchr.org/english/issues/mercenaries/wgvisits.htm.
94. See Oral Statement by Mr. Alexander Ivanovich Nikitin, President of the Working Group on the use of mercenaries as a means of violating human rights and impeding the right of peoples to self-determination, Human Rights Council, 10th Session, 6 Mar. 2009 (commenting on the adoption of the Montreux Document).
95. 'Mercenaries: UN expert panel pushes for stronger regulation of private military and security companies', 23 July 2010, available at: www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=10227&LangID=E.
96. See www.bis.org/bcbs/index.htm.
97. See www.oecd.org.
98. See, generally, Rasul v. Bush, 124 S Ct 2686 (2004); and Boumediene v. Bush, 128 S Ct 2229 (2008).
99. See www.unglobalcompact.org.
100. See www.fsc.org.
101. International Code of Conduct for Private Security Service Providers, available at: www.icoc-psp.org/uploads/Signatory_Companies_-_June_2011_-_Composite_List_-_SHORT_VERSION.pdf. ('ICoC').
102. As noted above, I will not consider national legislation, although it is important to note that its extraterritorial effect is indeed relevant to GAL
103. ECOSOC, 53rd session, UN Doc E/CN.4/1997/24 (20 Feb. 1997), at paras 69, 78. There is little support for the traditional UN approach which treats private military contractors as mercenaries.
104. For two examples of what has become the minority view, see A.-F. Musah and K. Fayemi (eds), Mercenaries: An African Security Dilemma (2000).
105. Leander, 'Global Ungovernance: Mercenaries, States and the Control Over Violence', Copenhagen Peace Research Institute, Working Paper (2002)
106. Also criticizing what was once the UN position see S. Percy, Mercenaries: The History of a Norm in International Relations (2007), at 222.
107. ECOSOC 2005/14, Report of Shaista Shameem, Special Rapporteur on the use of mercenaries as a means of impeding the exercise of the right of peoples to self-determination, UN Doc E/CN.4/2005/14 (8 Dec. 2004), at para. 7.
108. Consider, e.g., the thousands of Iraqi and American military contractors working in Iraq.
109. UN GA and SC Resolutions in the late 1970s and early to late 1980s condemned mercenary activity as an illegitimate form of external interference in another state's affairs: see, e.g., GA Res 2625 (XXV), UN Doc A/2625 (Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations) (24 Oct. 1970); GA Res 41/102, Use of mercenaries as a means to violate human rights and to impede the exercise of the rights of peoples to self-determination, UN Doc A/RES/41/102 (4 Dec. 1986); GA Res 42/96, UN Doc A/RES/42/96 (1987); SC Res 405, UN Doc S/RES/405 (1977); and SC Res 507, UN Doc S/RES/507 (1982). Treaty law governing mercenaries confirms the importance of the non-interference rationale in the prohibition of mercenary activity. The requirement that a mercenary be of a nationality distinct from that of the belligerents appears in all international and regional instruments dealing with mercenaries.
110. See Luanda Convention, reprinted in Mourning, 'Leashing the Dogs of War: Outlawing the Recruitment and Use of Mercenaries', 22 Va J Int'l L (1981-1982) 589, 615 (Art. 1).
111. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977 (Art. 47); Convention of the OAU for the Elimination of Mercenarism in Africa, 3 July 1977, OAU Doc CM/433/Rev. L. Annex 1 (1972) Art. 1; and International Convention against the Recruitment, Use, Financing, and Training of Mercenaries, UN Doc A/Res/44/34, 4 Dec. 1989 (Art. 1).
112. UN Doc E/CN.4/2005/23, The right of peoples to self-determination and its application to peoples under colonial or alien domination or foreign occupation - Note by the United Nations High Commissioner for Human Rights (18 Jan. 2005), at para. 7.
113. GA Res 4/42, Implementation of General Assembly Resolution 60/251 of 15 March 2006 entitled 'Human Rights Council', Report of the Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination, UN Doc A/HRC/4/42 (7 Feb. 2007), at 14.
114. UN Doc A/HRC/RES/7/7, Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights Including the Right to Development, Report of the Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of people to self-determination (9 Jan. 2008), at para. 3 (emphasis added). Other suggestions included the adoption of an international 'code of conduct' for the industry (UN Doc E/CN/Sub.2/2003/12/Rev.2 (26 Aug. 2003)) and the application of the Norms on the Responsibilities of Transnational Corporations and other business enterprises with regard to human rights to companies operating and providing military and security services in more than one country (ECOSOC 2006/11, The Right of Peoples to Self-Determination and Its Application to Peoples Under Colonial or Alien Domination or Foreign Occupation, UN Doc E/CN.4/2006/11/Add.1 (3 Mar. 2006)).
115. Press Conference by Amada Benavides and Alexander Nikitin of the UN Working Group on the use of mercenaries, and Dan McNorton, UNAMA Public Information Officer, 9 Apr. 2009.
116. A/HRC/15/25, Annex, Draft of a Possible Convention on Private Military and Security Companies (PMSCs) for Consideration and Action by the Human Rights Council (Report of the Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination) ('Draft Convention') (2 July 2010)
117. I find it unlikely that states would submit, under Art. 34, to interstate complaints. This mechanism, which exists in many human rights committees (the Human Rights Committee, the Committee on the Elimination of All Forms of Racial Discrimination, the Committee on Migrant Workers, the Committee against Torture, and the Committee on Enforced Disappearances) has never been used by states.
118. See M. Shaw, International Law (2008), at 335; and www2.ohchr.org/english/bodies/petitions/index.htm#interstate.
119. Contractual provisions may also be freely inserted by hiring parties (government or other) in contracts with companies (and of course by companies in contracts with personnel, but that is an entirely different issue)
120. See, generally, Dickinson, 'Public Law Values in a Privatized World', 31 Yale J Int'l L (2006) 383
121. See, e.g., Vinnell's Statement of Work, 9 June 2003, available at: http://projects.publicintegrity.org/docs/wow/Vinnell.pdf (a contract to train the New Iraqi Army provided that Vinnell's invoices for the first six months could not exceed a certain sum).
122. The privatization of prisons and the privatization of military services raise similar questions of scope (how much to outsource) and oversight (how to monitor the performance of private actors entrusted with governmental functions). In fact, states have dealt with both types of privatizations in similar ways.
123. The UK, e.g., published a Green Paper envisaging the privatization of prisons in 1998 (UK Home Office, 'Prisons Probation: Joining Forces to Protect the Public' (1998), available at: www.nationalarchives.gov.uk/ERORecords/HO/421/2/cpd/cpu/pcon1.htm).
124. In both reports, the outsourcing option was taken seriously, without paying lip service to preconceived ideas or stigmas against privatization. Both Green Papers presented areas in which the involvement of private parties could be beneficial, while highlighting areas worthy of improvement, and are widely regarded as points of reference for policy-makers and scholars in those fields.
125. See Pozen, 'Managing a Correctional Marketplace: Prison Privatization in the United States and the United Kingdom', 19 J L & Pol (2003) 253, at 279
126. See Tenn. Code Ann. ¶ 41-24-104(a)(4) (2003) (the statute requires private prison contractors to provide an adequate insurance plan that provides that the sovereign immunity of the state shall not apply to the contractor, and prevents the private contractor from calculating inmate release/parole eligibility, changing the level of custody, or taking disciplinary actions against prisoners).
127. McAfee, 'Tennessee's Private Prison Act of 1986: An Historical Perspective With Special Attention To California's Experience', 40 Vanderbilt L Rev (1987) 851, at 861
128. Also advocating the use of contracts are the Voluntary Principles on Security and Human Rights (adopted in Dec. 2000, available at: www.voluntaryprinciples.org/files/voluntary_principles.pdf) ('Voluntary Principles').
129. 48 CFR 252.225-7040 (b)(3)(ii) and (iii). It is worth noting that these provisions must also be incorporated in potential subcontracts (48 CFR 252.225-7040 (q)).
130. Sarajevo Code, infra note 156, at (iv) and (v)(the aim of which is 'to support the development and enforcement of formal regulation by engaging all relevant actors in a drive towards improved standards'); IPOA's Code of Conduct infra note 201 s. 9.1 (providing that 'signatories shall go beyond the minimum legal requirements and support additional ethical imperatives that are essential for effective peace and stability operations').
131. N. Rosemann, Code of Conduct: Tool for Self-Regulation of Private Military and Security Companies (2008), at 5.
132. This list is non-exhaustive. Another notable initiative is the one undertaken by the Institute for International Law and Justice as NYU School of Law. The Institute, supported by the Carnegie Corporation of New York, organizes conferences, publishes books, and brings together stakeholders in the private military industry in the aim of developing a normative framework applicable to private military companies' operations.
133. For more information about this project, see www.iilj.org/research/PrivateMilitaryandSecurityCompanies.asp.
134. For the list of participants see www.voluntaryprinciples.org/participants/.
135. An important difference between Erinys and IPOA, however, is that IPOA does not turn non-compliant employees over to the authorities - the companies are merely encouraged to report violations to such authorities
136. Code of Conduct and Ethics for the Private Security Sector, available at: www.coess.org/documents/code_of_conduct.pdf.
137. Sarajevo Code of Conduct for Private Security Companies, available at: www.saferworld.org.uk/images/pubdocs/Code%2520of%2520conduct.pdf.
138. Cockayne, 'Regulating Private Military and Security Companies: The Content, Negotiation, Weaknesses and Promise of the Montreux Document', 13 J Conflict Security L (2008) 401, at 402
139. In addition to the 17 states which participated in the drafting of the Montreux Document, 19 more states have expressed support for the Montreux Document since its release
140. See www.eda.admin.ch/eda/en/home/topics/intla/humlaw/pse/parsta.html.
141. The UN GA and SC endorsed the Montreux Document and circulated it to member states in a joint resolution. See UN Doc A/63/467 - S/2008/636 (6 Oct 2008).
142. The British Association of Private Security Companies notes on its website that it will ensure that the good practices of the Montreux Document are reflected in the future regulations issued by the association, and qualifies the adoption of the Montreux Document as 'a milestone that clarifies the applicable law and thus contributes to strengthening compliance with IHL and respect for human rights': see www.bapsc.org.uk/key_documents-swissInitiative.asp.
143. While Part I of the Montreux Document is entitled 'Pertinent International Legal Obligations Relating to Private Security and Military Companies', Part II - reflecting its de lege ferenda character - is entitled 'Good Practices Relating to Private Security and Military Companies'
144. This is consistent with the nature of the Montreux Document, which identifies good practices for states - as its name indicates ('On Pertinent International Legal Obligations and Good Practices for States related to Operations of Private Military and Security Companies during Armed Conflict') (emphasis added)
145. See also www.icoc-psp.org/ICoC_Steering_Committee.html.
146. See Concept Paper: Areas Requiring Further Consideration for the ICoC (2011), available at: www.icoc-psp.org/uploads/TSC_Concept_Paper-final_2011May.pdf.
147. See www.icoc-psp.org/ICoC_Working_Groups.html.
148. See Workshop of Governmental Experts and Industry Representatives on Private Military/Security Companies, 16-17 Jan 2006, Zurich, Switzerland. Summary of the Chair, 1 Sept. 2006, available at: www.eda.admin.ch/psc.
149. See 'The British Association of Private Security Companies Response to the Foreign & Commonwealth Office's Announcement on the Public Consultation Regarding Promoting High Standards of Conduct by Private Military and Security Companies (PMSCs) Internationally', 24 Apr. 2009, available at: www.bapsc.org.uk/downloads/BAPSC%20%27SR%27%20Statement.pdf.
150. This influence, often overlooked, has been described at length by Ranganathan, whose article constitutes an excellent complement to this section
151. See, generally, Friedrich, 'Codes of Conduct' in Max PLanck Encyclopedia of Public International Law (2008)
152. Schwartz, 'The Nature of the Relationship between Corporate Codes of Ethics and Behavior', 32 J Bus Ethics (2001) 247
153. See, e.g., the BAPSC's charter, available at www.bapsc.org.uk/key_documents-charter.asp (which regulates the 'activities of UK-based firms and companies that provide armed security services in countries outside the UK').
154. Although still referred to as IPOA, the association has been renamed 'The Association of the Stability Operations Industry'
155. The IPOA's website is at: www.ipoaonline.org.
156. For a list of IPOA members see http://ipoaworld.org/eng/ipoamembers.html.
157. IPOA Code of Conduct, available at: http://ipoaworld.org/eng/codeofconduct/87-codecodeofconductv12enghtml.html (the original version of the code was adopted in 2001 and the most recent one in 2009).
158. For more information on IPOA's Enforcement Mechanism see www.ipoaworld.org/eng/submitcomplaint.html.
159. The IPOA's complaint mechanism is available at: http://ipoaworld.org/eng/submitcomplaint.html.
160. The IPOA's Standard Compliance and Oversight Procedure is available at: http://ipoaworld.org/eng/compliancev02eng.html.
161. See www.bapsc.org.uk/key_documents-swissInitiative.asp.
162. See www.bapsc.org.uk/key_documents-swissInitiative.asp.
163. See the PSCAI website, available at: www. pscai.org.
164. See www.pscai.org/Docs/PSC_Registration_Process_2006.pdf.
165. For the sake of clarity, I will refer to these codes as codes of conduct, it being understood that this includes codes of ethics as well
166. See, e.g., the IPOA's Standards Compliance and Oversight Procedure, supra note 215, sect. 1.9 (expulsion of the company from the industry association is typically the only sanction contemplated, even though members of the association are encouraged to report violations directly to relevant authorities).
167. I should note that, in this figure, I include companies that have posted on their websites detailed information (i.e., more than just a logo) regarding their membership of industry association(s). The reason is that I wanted to account for those companies which have taken the extra step to make a public and visible commitment to the provisions included in the industry associations' codes of conduct.
168. The company's clients included a number of UK governmental agencies, the US Department of Defense, the Japanese Ministry of Development and Reconstruction, the Swiss, Swedish and Canadian governments, and the European Commission. ArmorGroup also worked extensively for large corporations.
169. See www.Bloomberg.com, 'ArmorGroup Nears $380 Million Mine Clearance Order', 14 Apr. 2005, available at: www.bloomberg.com/apps/news?pid=newsarchive&sid=ajT63FtnGdT0.
170. Fisk and Carell, 'Occupiers Spend Millions on Private Army of Security Men', The Independent, 28 Mar. 2004.
171. See Fainaru and Tate, 'Outsourcing a War', Washington Post, 24 June 2007 (ArmorGroup's Iraq Operations Manager said of the firm 'it's a monster')
172. 'Regulation - An ArmorGroup Perspective' (2004), previously available at: www.armorgroup.com/mediacentre/publications/?year=2004, now on file with author, at 4.
173. Under the contract, Aegis was to receive $92 million in the base year, $97 million in the first option year, and $103 in the second and final option year (see Office of the Special Inspector General for Iraq Reconstruction, Audit Report, 'Compliance with Contract No. W911S0-04-C-0003 Awarded to Aegis Defence Services Limited', Report 05-005, 20 Apr. 2005, at 1).
174. Minow, 'Outsourcing Power: How Privatizing Military Efforts Challenges Accountability, Professionalism, and Democracy', 46 BC L Rev (2005) 989, at 1010
175. 'Aegis Links Help Reinforce Security', The Times, 25 Nov. 2005.
176. Aegis' Code of Conduct, June 2010, and Aegis' Code of Business Conduct, July 2010, available at: www.aegisworld.com/index.php/codeofconduct (the code had been taken off the website, probably while undergoing some revisions. The code is on file with the author).
177. The company's Code of Business Conduct contains specific standards in the area of negotiating, bidding, receiving gifts and gratuities, and harassment
178. E.g., it is unfortunate that the company's 'ethics hotline' only takes messages and does not provide a real forum for concerned personnel.
179. Triple Canopy's website is at: www.triplecanopy.com.
180. Triple Canopy was created in 2003 and contracted for over $100 million with the US State Department for the provision of personal and guard services
181. See also Berger, 'The Other Army', New York Times Magazine, 14 Aug. 2005.
182. Triple Canopy's 'Commitment to Human Rights', available at: www.triplecanopy.com/philosophy/human-rights/.
183. DynCorp's Code of Ethics and Business Conduct, available at: www.dyn-intl.com/media/1474/code_of_ethics_and_business_conduct.pdf.
184. See www.dyn-intl.com/code-of-ethics.aspx.
185. DI Hotline, available at: https://secure.ethicspoint.com/domain/media/en/gui/27481/index.html.
186. See www.eodt.com/AboutUs/Ethics/and https://secure.ethicspoint.com/domain/media/en/gui/17948/index.html.
187. Abbott and Snidal, 'Strengthening International Regulation through Transnational New Governance: Overcoming the Orchestration Deficit', 42 Vanderbilt J Trans'l L (2009) 501, at 507
188. See, for an example in the sporting goods industry, van Tulder and Kolk, 'Multinationality and Corporate Ethics: Codes of Conduct in the Sporting Goods Industry', 32 J Int'l Bus Studies (2001) 267, at 271, 274
189. Raustiala, 'Compliance and Effectiveness in International Regulatory Cooperation', 32 Case Western J Int'l L (2000) 387, at 425
190. Citing K. Raustiala and D. Victor, The Implementation and Effectiveness of International Environmental Commitments: Theory and Practice (1998).
191. Bernauer and Moser, 'Reducing Pollution of the River Rhine: The Influence of International Cooperation', 5 J Env't & Dev (1996) 389
192. Brown Weiss, 'Understanding Compliance with International Environmental Agreements: The Baker's Dozen Myths', 32 U Mich L Rev (1999) 1555