Lodos

The mandate of the ICoCA translates into three core functions of the association. These are (1) the “Certification of Member Companies assessing whether a company’s systems and policies meet the requirements of the Code of the Conduct […]; (2) Reporting, Monitoring and Assessing Performance of Member Companies’ compliance with the Code of Conduct based on established human rights methodologies, including in the field […]; (3) Handling complaints on alleged violations of the Code of Conduct, including allegations that the Member Companies’ grievance mechanism is not accessible, fair, or not offering effective remedies” (ICoCA, 2016b). As the Project Officer of the ICoCA’s secretariat, Mr. Zaragoza Montejano, pointed out to the author in a phone conversation, there are several moments during these different steps where companies are obliged to provide information about their conduct to the ICoCA if they aim to become (or stay) a member of the association, and where the ICoCA is subsequently able to engage with these companies (e.g. to ask for additional information or to provide the company with feedback after the information has been analyzed). If companies apply for membership in the ICoCA they have to provide information for example about the type of operations they conduct, in which countries they operate, if these operations are armed, how many employees the company has, and how the company has created a grievance mechanism for victims of human rights abuses or other complaints filed against the company. In the next step, the certification process, companies have to provide among others, information about their internal policies and how these policies take into account the requirements of the ICoC, including human rights, and humanitarian law.

The certification process, which is in a pilot phase, currently functions in the following way. The ICoCA recognizes already existing external standards and compares them with the ICoC (see ICoCA (n.d.)). As Mr. Zaragoza explained, to date two standards have been recognized by the ICoCA. These are the PSC.1 standard for land-based operations and the ISO 28007 standard for maritime operations. MacLeod

(2015) observes, the PSC.1 standard is “a quality management system standard that includes specific requirements for audited PSCs to demonstrate that they have considered human rights risks and adverse human rights impacts as part of their management system, as well as providing remedy mechanisms for third parties affected by harmful outcomes of PSC activities” (p. 133). It has been developed by the American National Standards Institute (ANSI) and ASIS International (a professional organization for security professionals worldwide) and is required since May 2012 for companies that aim to enter procurement contracts with the US Department of Defence (MacLeod, 2015). ISO standards, including the ISO 18788 standard which is based on the PSC.1 standard were set up by the International Organization for Standardization (ISO), which is a “non-governmental international organization consisting of national standard-setting bodies” (White, 2016). If the ICoCA identifies gaps between external standards and the ICoC (see ICoCA (n.d.) for the gap analysis concerning the PSC.1 standard) the ICoCA requests additional information from the company to guarantee that its conduct is in compliance with the ICoC. Since the certification process is currently in the pilot phase however, there have been no companies certified until now by the ICoCA.

The next step where PMSCs are obliged to provide information to the ICoCA is the reporting, monitoring and assessing function. As Mr. Zaragoza explained, companies are subject to field-based reviews of the company’s compliance with the code. Such a review may be conducted when either the company itself requests it or when the ICoCA’s executive director decides to launch an investigation (e.g. because of certain developments in the region where the company operates that may increase the risk of human rights abuses). In addition to visiting PMSCs on the ground, the ICoCA also engages with civil society organizations, local communities, and governmental and UN institutions that are active in the region and that have an interest in the issue. The third function of the ICoCA is the grievance mechanism. It has not been fully designed yet but the ICoCA will presumably function as a mediator between victims of human rights abuses or other complainants and the Member PMSCs. Hereby it relies on the grievance mechanisms of the member companies. Member PMSCs that do not establish effective grievance mechanisms or which do not react to legitimate complains of misconduct can be excluded from the ICoCA. Exclusion from the association is the ultimate consequence for companies that fail to provide relevant information and that do to cooperate with the ICoCA in good faith. Apart from that

consequences may also follow for companies that breach the code if civil society organizations participating in the ICoCA (and hence aware of the misconduct) increase public awareness of an issue.

Mr. Zaragoza pointed to the fact that the incentive for PMSCs to join the ICoCA is mainly of an economic nature. Companies will join the association and subject themselves to certification and monitoring if the added value for them is higher than the costs of being a member. Market incentives are created when membership in the ICoCA provides a competitive advantage over companies outside the association (e.g because clients preferably contract certified companies or even demand membership of the association from companies they hire). Some states, such as the U.S. and Switzerland have created market incentives by introducing legislation that for example obliges government departments to award procurement contracts only to members of the ICoCA or, in case of Switzerland, requires all Swiss companies operating in complex environments to become members. Since the U.S. is one of the clients with the largest contracts, this creates at least for the bigger companies an informal obligation to join the ICoCA if they want to stay in the market. The UK however has not introduced such legislation to date (see also White (2016)).

Table 24: International Code of Conduct Association (Private Military) Private Military

Professional Accountability

Forum: International Code of Conduct Association 1 Obligation Yes (Members of the association have to

provide information to the ICoCA at various moments in time)

2 Question/ Debate

Yes (The ICoCA has the authority to question its members about their conduct and engage in a debate with them)

3 Response/ Judgment/ Conseque nces

Yes (The ICoCA may respond to the information provided by its members; the ultimate sanction is to exclude members from the association)