May private security companies violate human rights a little bit?

Paix et sécurité

Since September 2015, private security companies (PSCs) headquartered in Switzerland are subject to a certification procedure for the exercise of security services abroad. 400 such operations of 30 PSCs have been authorized, while seven operations have been subjected to review and  so far. Are the underlying criteria too modest?

Various cases of PSC misconduct, such as their participation in torture incidents in Abu Ghraib, reveal the power and the risks that come with the exercise of security services and underline the need for conditioning it. In 2006, the FDFA, in collaboration with the ICRC, launched a fruitful global initiative for improving PSCs’ compliance with humanitarian and human rights law and reinforcing accountability mechanisms. It led to the adoption of the Montreux Document, a non-binding list of standards and best practices and the International Code of Conduct (ICoC) for PSCs operating in complex failed-state environments.

As a national counterpart, the Federal Act on Private Security Services Provided Abroad entered into force in September 2015, putting an end to a decade-long legislation process with various setbacks (in 2008, the Federal Council assessed such regulation as disproportionately resource-intensive, given the „currently minor importance of this sector“ and the absence of comparable legislation in other states – a position that appears to have been in tension with Switzerland’s concurrent role as co-initiator of the Montreux Document, which itself recommends the establishment of authorization regimes).

The Federal Act prohibits the certification of extraterritorial operations of PSCs, if they are expected to participate in hostilities (Art. 8) or to provide their services “in connection with the commission of serious human rights violations” (Art. 9(a)-(c)). In addition, it requires PSCs to sign ICoC (Art. 7). On the one hand, it is laudable that Switzerland, by enacting such a Statute, implicitly acknowledges its obligations to respect and protect human rights vis-à-vis individuals abroad. This is noteworthy, given the extensive debate on the existence and scope of extraterritorial human rights obligations. On the other hand, the Act’s prohibition of only serious human rights violations conflicts with the idea of human rights setting high thresholds, any transgression of which is in need of strong justification and of being proportionate. While it is common to classify grave violations of human rights as serious or systematic ones, this does in no way imply that singular or non-systematic violations constitute mere peccadillos. To overstate the point: The Federal Act could be taken as implying that while human rights are important, we may turn a blind eye to perpetrators who violate them just a little bit. It should by no means be assumed that most PSCs are involved in misconduct, and such limitation to serious violations may not be the reason for the small number of licenses denied. But at least, it makes it rather demanding to deny certification based on human rights concerns. This may be at variance with the object and purpose of human rights, but also with simultaneously campaigning at the multilateral level for improving PSCs’ human rights compliance. Interestingly, the ICoC requires PSCs to respect human rights in general and not merely to avoid serious violations. Taking an initiator role regarding multilateral processes prerequisites a high degree of credibility. Credibility, in turn, follows from acts and initiatives, but also from coherence among policies, from subjecting oneself to principled standards, even if others still lack them: if ambitious global rules are advocated for, domestic regulation should not compromise on them. In terms of human rights advocacy, this calls for consistent human rights mainstreaming, in domestic as well as foreign policies.