The International Trade in Policing and Security Models: Should it be Subject to Public International Law?

Private security has been a huge global business since the 1980’s. This is particularly true in South Africa, where a society traumatized by the Apartheid era is still dealing with the fallout from years of high policing and repressive governance strategies. Models of ‘policing’ have been imported into South Africa, and exported from this nation, since before the fall of Apartheid.

The term ‘policing’ here is used in a broad sense. While most people associate the term with the state police (that is, publicly funded policing bodies) the reality is that our day to day lives are made secure in a variety of different fashions: through urban architecture, private security firms, technological methods and neighbourhood watch groups, among other forms of security governance. Clifford Shearing of the University of Cape Town has written extensively on this phenomenon. He recognizes the fact that “the new players in policing are not part of formal government. As a result, governments, especially governments of nation-states, have lost their monopoly on policing.”[1] Shearing and his colleagues note that this is not necessarily a bad thing. Rather, governments should be aware of this phenomenon when drafting security regulation.

However, many dangers lurk when wading into this subject. Do international security firms subvert state security by threatening the development of state structures that can more adequately take into account overall economic and social development goals? Furthermore, does the state lose legitimacy when it delegates security matters to private hands, or leaves certain elements of security to the whims of the marketplace? Lastly, through public or private channels, is the exportation of policing models across national boundaries and cultural divides an effective way of building secure societies?

Private military contracting firms have come under scrutiny lately, especially after the invasions of Iraq and Afghanistan. The core difference between these firms and most security companies is that they specialize in conducting operations in international conflict zones, which ideally are governed according to the Geneva Conventions. However, these security personnel – or “private warriors” as one Public Broadcasting Service documentary dubbed them – operate in a virtually unregulated manner. They have been known to perpetrate grave human rights abuses, as was the case in Iraq when private military contractors killed innocent civilians. US prosecutors laid charges against five guards. However, they had a very difficult time making their case and the charges were eventually thrown out because of a Fifth Amendment violation of the guards’ rights under the US Constitution.

This case proves how blurry the lines of public and private law can get when dealing with private security firms. If these security personnel were soldiers their conduct would have been reviewed in a much more thorough and procedurally clear manner. Simply put, most states do not have legal mechanisms through which they can put such security personnel on trial. In South Africa, the Private Security Industry Regulatory Authority is tasked with regulating such security activities, but it is drastically under-funded and incapable of monitoring the activities of security personnel, who frequently perpetrate human rights abuses and other crimes.[2]

According to the Congressional Research Service of the United States Government, 53% of the Department of Defense’s deployed personnel in Iraq and Afghanistan are private security/military contractors. European scholars have made attempts to link private military company conduct and international law. Yet, these attempts seem to be futile, as public international law is not applicable to corporations who benefit from private, individual juridical personality. Francesco Francioni notes that it is widely held that “private military ‘contractors’ are by definition only in a contractual relation with the hiring state.”[3] While in-depth studies are called for, it is not immediately evident that the presence of private security contractors in Iraq and Afghanistan have led to a more secure environment on the ground.

Nation states and international law thinkers have been much slower in conceptualizing links between international law and the private security sector (that is, security personnel deployed in non-conflict zones). At first glance, this might seem like an area of law that is solely domestic, for national governments can regulate any industry they wish within their own borders. Yet international security firms are now protecting vessels on the high seas, handling security at airports, monitoring communications for large multinational corporations, and otherwise influencing cross-border activities. They also wield a tremendous amount of power in the countries where they do business. This is especially true in South Africa where there is much support from the upper class, powerful (white) clients of these household and commercial security firms.

International security companies perform a variety of policing tasks in South Africa, such as patrolling neighbourhoods and commercial districts, transporting prisoners, operating prisons, guarding mining and energy installations, and performing armoured truck delivery, among other activities. In many communities in South Africa, particularly amongst the wealthy elite, calling the South African Police Force in emergency situations is simply out of the question. There is a heavy reliance upon private security companies, such as ADT and CHUBB Group, for home and office protection. In 2005, there were over 288,000 private security officers in South Africa, many of whom work for international security conglomerates.[4]

Let us look at one such conglomerate to feel out some of the ethical issues involved.Group4Securicor has over 585,000 employees in 110 nations. It is a publicly traded company, earning billions of dollars of revenue every year for its shareholders, to whom it is ultimately responsible. Group4Securicor could be involved in the arrest, transport, and detention of a suspected criminal offender. It performs a wide variety of tasks, and security experts from this company often shift policing models across national boundaries with little thought paid to local social or cultural conditions. For instance, there is widespread resentment in South Africa that ex-Apartheid police officers, many of whom perpetrated crimes in the lead-up to the 1994 elections, are now patrolling neighbourhoods as private security officers, virtually replacing the publicly funded state police. Yet the company’s directors in England might have very little comprehension of this reality.

It is often noted that reactive or repressive policing tactics, whether imported publicly or privately, can be counterproductive and undermine international development efforts.[5]Eleven UN agencies are active in South Africa, yet there is evidence that private security companies hamper social development, especially freedom of movement for lower class (black) persons. Private security models have become increasingly militaristic and repressive.[6] They do not serve the public, rather they serve their clients. This obviously affects the collective psyche of a developing nation like South Africa. So should the UN address this issue, especially in light of its role in bolstering public policing efforts in developing nations?

Private policing models, whether delivered in a militaristic or more subdued ‘security guard’ form, whether publicly funded by states or privately by commercial entities, comprise one small part of an evolving trend of privatization in our global society. We live in a mercenary age. Public agencies give huge contracts to private consulting firms. In the US, charter schools flourish in the midst of deteriorating public schools. In many countries where there are national healthcare systems, private hospitals catering to the rich deliver better results to patients and draw staff away from the public system.

If the international legal community decides to regulate this rapidly expanding industry, a new type of legal mechanism would be needed. Efforts by the International Committee of the Red Cross[7] to inform private security contractors of their responsibilities under International Humanitarian Law are a good example of the type of proactive measures the UN could take to help its member states countervail the negative outcomes of private security. Clearly, more information gathering and dissemination systems are needed. No current treaty system has the type of monitoring mechanisms necessary to keep large security firms in check, and balance the need for private security and public social and economic development.

[The research for this piece was conducted under Professor Julie Berg, convener of a seminar at the University of Cape Town entitled, "Police and Policing: Explorations in Security Governance".]

[2] L. Zedner, “Liquid Security: Managing the Market for Crime Control” (2006) 6:3Criminology and Criminal Justice 267 at 272.

[3] Francesco Francioni, “Private Military Contractors and International Law: An Introduction” (2008) 19:5 The European Journal of International Law 961 at 962.

[4] Julie Berg, The Accountability of South Africa’s Private Security Industry (Cape Town: Criminal Justice Initiative of the Open Society Foundation for South Africa, 2007) at 5.

[5] Susanne Karstedt, “Creating Institutions: Linking the ‘Local’ and the ‘Global’ in the Travel of Crime Policies” (2007) 8:2 Police Policy and Research 145 at 148. Mike Brogden, “Commentary: Community Policing: A Panacea from the West” (2004) 103:413African Affairs 635 at 635. Simon Coldham, “Criminal Justice Policies in Commonwealth Africa: Trends and Prospects” (2000) 44 Journal of African Law 218 at 226.

[6] A. Singh and M. Kempa, “Reflections on the Study of Private Policing Cultures: Early Leads and Key Themes” in M. O’Neil, M. Marks and A. Singh (eds.) Police Occupational Culture: New Debates and Directions (Oxford: Elsevier, 2007) at 305.

[7] Benjamin Perrin, “Promoting security of private security and military companies with international humanitarian law” (2006) 88:863 International Review of the Red Cross 613 at 635.

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