3.9. Oversight and accountability
a) PSPs may not be subject to effective oversight by national authorities and/or their clients. In these situations, PSPs’ accountability for their actions may be inadequate.
As part of the risk assessment, analyse the national framework for the provision of private security services, focusing on the enforcement of laws and regulations
Questions to address in a private security sector assessment (OECD: 213)
Accountability and oversight
- What laws and regulations are in place to govern the private security sector and the use of firearms by civilian corporate entities?
- How effective is their enforcement and which agencies are responsible for that enforcement?
- Which government agencies or ministries are involved in the control and regulation of PSCs (for example trade, economy, industry, the interior)?
- What procedures and criteria exist for licensing and registering companies?
- What systems and standards exist for vetting and licensing private security personnel?
- Have private security companies or their personnel been implicated in crime, including gender-based violence or trafficking, and have incidents led to trials or prosecutions?
- What voluntary codes of conduct, industry bodies and standards exist?
- Do procurers of private security services have procurement criteria or report information on the companies or individuals that they employ?
- Are there regulatory restrictions on the use of force and firearms by private military companies (PMCs) and/or PSCs?
Develop a procurement policy in alignment with the company’s human rights and anti-bribery and anti-corruption policies
- Stipulate the company’s human rights expectations of contractors and suppliers and incorporate these expectations in the code of conduct for PSPs and the contract.
- Make the policy publicly available and communicate it internally and externally to all personnel, business partners, contractors and other relevant parties.
- Encourage national professionalism by employing only reputable PSPs. (OECD: 214) Where feasible, consider hiring PSPs who have achieved PSC.1 or that are members of the ICoC Association (ICoCA), which will require certification, monitoring, reporting and performance assessments, and a complaints procedure (ICoCA: par. 11,12,13).
When selecting a PSP, review carefully the applicants’ standards and procedures such as (See Challenge 3.2.a.):
- PSP policy and practice: financial and contractual policy, human rights and security policy, health and safety policy, equal opportunities policy, disclosure of information and confidentiality.
- PSP operational procedures, in particular with regard to the command and control structure and communication procedures.
- PSP associations: relationship with public security forces, relationship with senior officials, political parties and organisations.
- Governance and oversight: code of conduct/ethics, rulebooks, responsibilities regarding policy and enforcement, ethics committee, employee tribunals, membership of trade association (SCG: 4) and, particularly, monitoring and internal accountability mechanisms, such as:
- “Internal investigation and disciplinary arrangements in case of allegations of wrong-doing by its personnel;
- Mechanisms enabling persons affected by the conduct of the personnel of the (PSP) to lodge a complaint, including both third party complaint mechanisms and whistle-blower protection arrangements”; (MD Part 2: par. 12)
- Regular performance reporting, specific incident reporting, and reporting on demand to the company and if appropriate to the relevant authorities; (MD Part 2: par. 12)
- Requirement for PSP personnel and its subcontracted personnel to report any misconduct to the PSP’s management or a competent authority. (MD Part 2: par. 12)
- Selection and recruitment: recruitment and selection methodology, criminal screening, human rights abuses and international humanitarian law violations screening, drug screening, discharge from police/security services, psychological screening.
- Human resource management: philosophy and practice, training policy, number of employees, staff turnover, absenteeism.
- Force and firearms policy: weapons in use, storage and maintenance procedures, inspection procedures, oversight and procedures for reporting use.
- References and certification: sector related, contract related, past experience of tendered contract, non-statutory certification.
Include clear clauses and performance requirements in the contract with the PSP that ensure respect by the PSP for relevant national law, international humanitarian law, human rights law (MD Part 2: 15) and company policies. Discuss these with the PSP to make sure the security provider understands its performance objectives (See Challenge 3.2.c.)
- Require the PSP to establish its own internal grievance mechanism, in alignment with the company’s own mechanism and consistent with company codes and policies, and report back to the company all reported grievances. The PSP should cooperate with official investigations into allegations of contractual violations and breaches of international humanitarian and human rights laws. (See Challenge 3.10.a.)
- Consider including contractual sanctions commensurate to the conduct, including :
- Financial penalties or withholding of progress payments pending compliance with contract requirements;
- “Removal of individual wrongdoers from the performance of the contract”; (MD Part 2: par. 20)
- Scaling back of contract tasks;
- “Removal from consideration for future contracts, possibly for a set time period”; (MD Part 2: par. 20) and
- Termination of the contract.
Reduce the range of scenarios where PSP personnel operate individually
Meet regularly with the contracted PSP to address the following issues:
- Implementation of required functions consistent with company policies and contractual requirements regarding VPs, code of conduct for PSPs and international and national humanitarian and human rights requirements.
- Vetting of personnel, to the best of the PSP’s ability, including ongoing efforts to ensure knowledge of capacity and risks associated with hiring personnel from a particular location/service background/community/ethnic background. Where feasible, personnel records should be kept on file by the contractor and made available for inspection. (MIGA: IV-5)
- Training of all employees on all standards specified in the contract, including on the use of equipment, on an ongoing and as needed basis as indicated by due diligence and risk assessment activities.
- Provision of defensive equipment, personal protective equipment, personal security equipment, appropriate weapons and firearms, and ammunition, by the PSP to its guards as required by the contract.
- Investigation of all allegations of human rights abuses, as well as of “all occasions when force or apprehension of a suspect has occurred to ensure this was done in accordance with company and contractor standards”. All such incidents should be reported to the company security manager and, where appropriate, to the local authorities. (MIGA: IV-5)
- Review of community and other stakeholders’ complaints to identify prevention or mitigation measures.
- “Confidentiality of information gathered in the course of duties”. (MIGA: IV-5)
- Any other findings from ongoing community engagement, due diligence and risk assessment activities.
Establish a monitoring mechanism to improve company oversight of the PSP
- Establish a focal point at the company who will be responsible for oversight of the PSP.
- Require the PSP to establish a focal point to oversee the conduct of its personnel and to meet with the company’s focal point on a regular basis (e.g. daily or weekly).
- Monitor PSPs through a variety of means: radio networks, CCTV visual monitoring (including installing cameras in vehicles), daily inspections and unannounced physical site inspections.
- Use checklists and performance indicators shared with the contractor and assess these on a regular basis. (MIGA: IV-1) Tie these indicators “to specific outcomes, such as financial rewards or penalties for the contractor, or the cessation of the contract.” (SCG: 8) Potential performance indicators include (based on SCG: 8):
- No-show rate;
- Missed guard tours;
- Missed supervisory visits;
- Missed training, incomplete training or failure to pass training tests;
- Internal and third party complaints;
- Misuse of force/firearms, including accidental discharges of weapons;
- Inappropriate interactions with community, public security, or other stakeholders;
- Violations of agreed procedure;
- Violations of international humanitarian law and human rights abuses;
- Violations of international or national laws governing the private security industry;
- Violations of company or industry code of conduct or ethics;
- Failure to cooperate with client investigation, request for information or incident reporting requirements; and
- Violations of the terms of the contract.
- Deploy an independent third party to monitor the performance of the PSP. “Monitoring by credible external professionals can provide an additional layer of assurance for stakeholders. It can generate practical advice and guidance to improve performance. It can increase transparency regarding the security arrangements for the business.” (BP: 18)
- Identify gaps in service delivery and examine options to fill gaps, including additional training and other support needs. (IGTs: 55)
Establish an operational-level grievance mechanism that allows individuals to report unethical and unlawful conduct anonymously (GPs: 31) (See Challenge 3.10.a.)
Conduct investigation into credible allegations and, where appropriate, report abuses to the relevant authorities (See Challenge 3.10.a.)
Engage with the host government to improve national oversight of the private security sector
- In countries where domestic laws and regulations conflict with internationally recognised human rights, seek ways to honour internationally recognised human rights to the fullest extent which does not place the company in violation of domestic law.
- “Advocate for reform of domestic legislation that conflicts with international standards”.
- Address risks of human rights abuse and of violations of international humanitarian law, as well as issues of complicity, in agreements with host governments and associates. (See Challenge 1.3.a.)
- “Give attention to, and report on, implementation of soft law guidelines”.
Work with other stakeholders to improve oversight of PSPs
- Support security sector reform programmes to enhance governance and oversight while respecting the core principle of local ownership.
- Promote coordination within host government structures, as there is often no single regulatory agency or oversight mechanism of the private security industry.
- Support efforts to strengthen the capacity of national human rights institutions, ombudsman institutions, anti-corruption commissions and independent security sector oversight bodies, to effectively oversee the private security industry.
- Work with other stakeholders (e.g. home governments, other contracting companies, relevant trade associations or other industry bodies, PSPs, civil society organisations) to develop frameworks for monitoring the performance of PSPs and to promote the adoption of effective remedy mechanisms.
- Support multi-stakeholder initiatives such as the VPs or the ICoC Association and harness their potential to lobby host governments on relevant human rights matters.
- Exchange experiences and lessons learned with other companies operating in the area and consider aligning companies’ codes of conduct for PSPs.
- Encourage PSPs to become advocates for human rights issues.
- Encourage oversight of PSPs by local stakeholders.
- Clarify roles and responsibilities of the PSP and share the company’s own code of conduct for PSPs.
- Develop a network with relevant stakeholders, ensuring the different groups in local communities are adequately represented (in particular the most vulnerable groups), and provide guidance on what to do whenever there is a risk of a human rights abuse.
- Suggest steps to take in case of alleged human rights abuses, providing information on the company’s grievance mechanism and guidance on how to use it, and ensuring protection of whistleblowers.