Analysis of IPOA Code of Conduct v. 12

Analysis of IPOA Code of Conduct v. 12

July 2009

Amnesty International USA (AIUSA) has provided the International Peace Operations Associations (IPOA) with feedback on its Code of Conduct since 2006, particularly relating to the need to develop implementation, monitoring and oversight, enforcement, transparency, and public reporting mechanisms. AIUSA has met with IPOA staff, submitted written comments on previous versions of the Code, participated in the Code of Conduct Convention, which resulted in the current twelfth version of the Code, and engaged in Standards Simulation exercises.

AIUSA welcomes that IPOA is seeking the input from human rights organizations and other stakeholders, but remains concerned that much of our advice has gone unheeded. Although IPOA made some positive changes to the Code which have strengthened its standards - including referencing the Montreux Declaration, requiring signatories to report to relevant authorities grave breaches of international law by their personnel, increasing the minimum work age for armed security, vetting personnel for past violations of international humanitarian and human rights laws, forbidding illegal weapons procurement and labor trafficking, and stipulating whistleblower protections - the most recent version of the Code remains an inadequate document, a mere set of aspirational values, in which expectations of compliance are still not adequately addressed. Now in its twelfth iteration, for every positive revision made to the Code, other standards have been weakened and key human rights concerns continue to exist.

Therefore, in addition to the suggested revisions to the Code language detailed in the second part of this document, AIUSA recommends that the following topics related to operationalizing the Code standards and ensuring compliance and transparency also be addressed by IPOA. The following should not be interpreted as an exhaustive list of recommendations, but rather as an illustrative view of the main points that are currently lacking in the IPOA Code of Conduct to date.

Development of Code Implementation and Assurance

Implementation
The Code contains and references a wide range of standards, including international human rights and international humanitarian law, yet IPOA has not provided its member companies with any substantive guidance as to how these standards are to be translated into protocols for operations in the field. One cannot seriously consider the current Code a "code" - a word which indicates that a systematic compendium of rules, laws or standards have been set forth - when the extent of the content on human rights law and standards is limited to the names of major international treaties. Without well defined, practicable, and consistent standards, there is no means to measure and assess each member's compliance with Code standards, or compare compliance across companies. It is not enough to leave the development of implementation guidelines to each company, although it would be useful for companies to share their experiences with best practices. Occasional IPOA trainings offered to personnel of member companies cannot replace implementation guidelines.

Oversight/Monitoring
If the IPOA code is to evolve into more than a set of aspirational standards, there must be some means of independent, preferably third-party, oversight to regularly assess member companies on their efforts to implement the Code and to remediate instances of non-compliance. Companies should also have internal systems in place to monitor their in-house efforts to put Code standards into practice. Creating mechanisms for personnel to internally report suspected breaches of the Code is a positive step, but cannot substitute for regularized and comprehensive systems for measuring compliance with standards.

Enforcement
IPOA's "enforcement mechanism" - which should be labeled more accurately a third party complaint mechanism - is a step in developing appropriate grievance handling procedures which would allow an individual or organization to report suspected instances of Code non-compliance, to be independently adjudicated by non-affected parties.

The enforcement mechanism, however, is also in need of revision, as in its current form it amounts to IPOA staff and member companies policing each other and does not involve outside, independent experts in reviewing complaints received. Also, the timeline for the enforcement mechanism is extremely lengthy and certain alleged human rights abuses may require more expedited action to be properly addressed.

Furthermore, IPOA should establish a process to allow IPOA staff to initiate an investigation in cases of suspected violations of Code standards without exclusively relying on the submission of complaints from third parties.

If an alleged abuse is under investigation by governmental authorities or is the subject of legal action, IPOA should not automatically suspend its own investigation pending the outcome of others. Standards for criminal accountability, civil liability and violations of voluntary codes are not identical, and IPOA should not assume that the presence of one line of inquiry will obviate the need for its own. IPOA's organizational mission would indicate that it has a separate role to play in assuring that its members are addressing alleged violations in ways that are adequate and consistent with the reputational standard IPOA seeks to represent as a whole.

Reporting and Transparency
There are no provisions in the Code for public reporting of member companies' efforts to abide by the Code, which is a necessary component for increasing transparency, supplying affected stakeholders with relevant information, and ensuring the credibility of the Code. There is merely a vague requirement, under Transparency 2.2, that IPOA members be forthcoming with relevant authorities about their operations. Furthermore, a clause was added, Transparency 2.3, which details instances where disclosure of information is not required. In fact, nothing in the section of the code labeled transparency is in actuality about openly and publicly reporting on member companies' efforts to adhere to the Code standards.

Suggestions, Revisions to Content/language of Code

Preamble
Language matters, and indicates the level of commitment to promises made. Therefore, it is worrisome that throughout the Code signatories no longer assure that they "will" abide by the standards, but rather merely pledge that they "shall".

Signatories are now "guided by" international humanitarian law, international human rights law and the voluntary declarations enumerated instead of "encouraged to follow," but this change in language does not strengthen the pledge enough. Signatories should explicitly "agree to follow" these laws and standards.

There should be an explicit inclusion of the ILO 1998 Declaration on Fundamental Principles and Rights to Work, which outlines core labor standards, including the rights to freedom of association and collective bargaining, and the elimination of forced labor, child labor, and discrimination in employment. This is essential in light of reported disputes between private military and security companies and their personnel regarding wages and benefits and respect for freedom of association.

Human Rights
Provision 1.2 of the Code requires contractors to "minimize loss of life and destruction of property." However, there are no requirements of companies to pay reparations to civilians they unduly harm or for property they unduly damage when carrying out their missions. That people who suffer harms and abuses have a right to and access to a remedy and that member companies should provide reparations when they are responsible should be included in the text.

Transparency
Signatories should not only be "open and forthcoming with relevant authorities" about their operations and conflicts of interest, but with the public as well. IPOA's commitment to transparency was weakened as a result of explicitly spelling out instances where non-disclosure is acceptable, putting the burden on affected stakeholders to demonstrate that their right to know about member companies activities is legitimate.

Accountability
While signatories pledge in section 3.2 to cooperate with investigations into allegations of abuse, the pledge is qualified by the statement "to the extent possible and subject to contractual and legal limitations."

AIUSA recommends that where there are credible allegations that personnel have been involved in human rights abuses, the company should preserve any potential evidence of the abuse and suspend the alleged offender from any role or responsibility connected to the abuse pending investigation. Companies must not act in a way that hinders investigation by state authorities or allows further abuses to occur, including, for example, assisting in any way alleged offenders from evading the jurisdiction of prosecuting authorities or enabling them to engage in capacities with high-risk for reoccurrence of human rights abuses. Finally, companies should make public the results of any investigation the company might have made into alleged human rights abuses by personnel.

Personnel
While the Code (6.4) requires adequate training and vetting of personnel, there are no definitions or explanations of terms to clarify what these requirements entail. There is no specific mention of training on international humanitarian and human rights law and the IPOA Code of Conduct, and the clause on culturally specific training (i.e., instruction on "regional sensitivities") has been struck. A sentence added to clause 6.3, stating that personnel should be trained in accordance with "company standards that are appropriate and specific to their duties undertaken and the environment of operations", does not address these concerns. Clause 6.3 in conjunction with clause 6.4 creates a loophole in practice as signatories could arguably neglect human rights and humanitarian law training because such training was not "specific to [the personnel's] duties undertaken and the environment of operations."

The Code (6.5) was strengthened to include vetting of personnel for past human rights abuses, but the purpose of vetting clearly should be to eliminate those who may have engaged in past human rights abuses, not to assess "suitability".

The rights in the ILO Declaration on Fundamental Principles and Rights to Work, including the rights to freedom of association and collective bargaining, and the elimination of forced labor, child labor, and discrimination in employment, should be explicitly enumerated here.

While AIUSA recognizes the importance of contributing to domestic economic growth in areas of operation through the hiring of the local population (6.7), we also urge that potentially inadequate or un-enforced local labor laws not be used as a means to circumvent the respect of internationally recognized workers' rights and that remuneration and working conditions of all personnel are effectuated equitably and fairly.

All employment contracts should reference all appropriate labor rights and safeguards. All standards must be equally present in contracts and sub-contracts with personnel of all nationalities. Finally, labor rights, protections and safeguards must be clearly communicated to all personnel in accessible language and format.

Ethics
A key principle for the just use of force is proportionality. The clause that "Signatories pledge, when necessary, to use force that is proportional to the threat," was removed entirely and should be re-included.

Application and Enforcement
The threat of dismissal from IPOA alone (section 11.2) does not impart adequate assurance that Code principles will be enforced. More importantly, the enforcement mechanism as a whole needs to be strengthened to ensure impartial adjudication of code breaches, as discussed above.

AIUSA Recommendations for Additional Content
DISCLOSURE OF HUMAN RIGHTS RELATED CONTRACT PROVISIONS Companies should publicly disclose the terms of contracts with clients with respect to human rights.