I. Introduction
Private security is a thriving industry that has grown dramatically in Latin America over the last decade, due to high crime rates and perceptions of insecurity among the emerging middle class, as well as ineffective law enforcement.Footnote 1 As a result, Latin America has a notably high ratio of private security guards to police officers, some countries with many times more than the global average.Footnote 2 Private security personnel in Latin America are also the most heavily armed in the world outside of conflict zones.Footnote 3 However, most private security guards in the region are poorly trained in the safe handling of firearms, conflict resolution, and human rights.Footnote 4 Guards, including those who may have served as military or police officers, are often not vetted to ensure they do not have a record of human rights violations.Footnote 5 These factors, combined with serious deficiencies in the rule of law across the region, too often enable private security companies, also known as private security service providers (hereinafter collectively referred to as PSCs), to effectively operate outside state control.
In Latin America, PSCs hired to guard extractive projects have been involved in multiple high-profile cases of human rights abuse. In this article, the extractive industry refers not only to oil, gas and mining activities, but also to large-scale agribusinesses that produce monocultures such as palm oil or bananas.Footnote 6 Extractive projects have proliferated in tandem with the private security industry in Latin America over the past two decades.Footnote 7 Governments in the region implement or permit these projects to meet increasing demands for energy sources as well as provide revenue from exports. However, extractivism also often leads to intense social and land conflicts,Footnote 8 which can in turn be exacerbated by the presence of PSCs. Due to clashes between extractive companies and local communities, PSCs in Latin America often operate in what the International Code of Conduct for Private Security Providers (ICoC) defines as complex environments:Footnote 9 ‘areas experiencing or recovering from unrest or instability … where the rule of law has been substantially undermined, and in which the capacity of the state authority’ is limited. While Latin American countries have made progress in advancing their legislative and regulatory frameworks for PSC operations in recent years,Footnote 10 many laws still have gaps with regard to the selection, vetting, training and monitoring of PSCs personnel.Footnote 11 Moreover, even laws that are acceptable on paper are usually ineffective due to lack of implementation.Footnote 12 Public institutions in charge of overseeing PSCs tend to be under-funded and under-staffed, and efforts to increase their regulatory power are sometimes stymied by the PSC lobby.Footnote 13 This is reflective of more general rule of law problems in the region.Footnote 14
Against this backdrop, this article explores the ICoC (or ‘the Code’) and whether membership by Latin American stakeholders in the International Code of Conduct Association (ICoCA or ‘the Association’) has the potential to help reduce negative human rights impacts arising out of extractive projects in the region. The ICoC is an international soft law initiativeFootnote 15 that lays out standards for PSCs based on international human rights and humanitarian law. As the principal governance and oversight mechanism for the Code, the ICoCA monitors and promotes compliance with these standards via certification, monitoring and complaints mechanisms.Footnote 16 ICoCA’s tripartite membership consists of states, PSCs and civil society organizations (CSOs). However, to date the initiative has had limited uptake in Latin America, despite the record of abuses by PSCs in the region indicating that greater adherence to human rights norms is sorely needed. This article argues that the ICoCA may be useful for improving PSC compliance with human rights standards when providing services to extractive companies in Latin America, and that accordingly states and CSOs should incentivize or require PSCs to join.
While other standards and multi-stakeholder initiatives (MSIs),Footnote 17 such as the Montreux Document and the Voluntary Principles on Security and Human Rights, are also relevant to this analysis, we focus primarily on the ICoCA because it is a newer mechanism that offers a complementary framework bearing serious implementation by PSCs and states, and engagement by CSOs. Although human rights awareness has increased within the private security industry in recent years, the literature says little with specific regard to the ICoC’s application in Latin America and it remains relatively unknown to stakeholders in the region.Footnote 18 Therefore, this article also aims to contribute to raise awareness of the ICoC and the ICoCA as viable mechanisms applicable to Latin America.
The following section discusses case studies in which PSCs employed by extractive companies in several Latin American countries were involved in human rights abuses. The main purpose of this section is to highlight the need for PSCs to implement stronger human rights policies, such as those established in the ICoC. The third section discusses the international initiatives that complement the ICoC, explains the relevance of the ICoCA for Latin America, and identifies what responsibilities PSCs, states and CSOs undertake upon joining the ICoCA. The main argument in this section is that the ICoC provides a useful framework for PSCs to advance respect for human rights and provide remedy for abusive business practices in Latin America. Based on this background, the fourth section offers recommendations to promote the implementation of the ICoC and increase engagement in the ICoCA. The central recommendation is that Latin American states should enact laws and implement policies consistent with the ICoC to foster a speedy internalization of human rights standards within the corporate culture of PSCs.
II. Case Studies: The Human Rights Problem of PSCs and Extractive Industries in Latin America
Extractive industries, including monoculture farms and other agribusinesses, are some of the most prominent clients of PSCs in Latin America.Footnote 19 In addition to ineffective law enforcement and unstable political contexts,Footnote 20 the unregulated development of extractive industries is a contributing factor to the overall growth of the private security industry in the region.Footnote 21 As Kinosian and Bosworth point out in their regional study, the human rights problems of PSCs in Latin America are particularly salient in the extractive context.Footnote 22 In nearly every country in the region, local populations affected by and protesting against extractive projects have been victims of excessive force and even killings by PSCs personnel.Footnote 23 These crimes are usually committed with impunity.Footnote 24 The following case studies exemplify the human rights violations that have resulted from the interaction of PSCs, extractive operations and local communities. These cases also refer to the national legal framework applicable to PSCs.
A. Honduras: Monocultures and Land Disputes
The Bajo Aguan region in northern Honduras has been the setting for violent land disputes in which PSCs hired by agribusinesses have been associated with severe human rights abuses against local communities,Footnote 25 including murder and attacks against protesters.Footnote 26 The land conflict stems from the Agriculture Sector Modernization and Development Act enacted in 1992Footnote 27 to allow the sale of large tracts of land that local residents owned collectively to agroindustrial firms,Footnote 28 and was exacerbated in the aftermath of the 2009 coup.Footnote 29 These factors enabled corporations to purchase thousands of acres of land for large-scale palm oil cultivation.Footnote 30 According to the information available, the land sales were conducted under duress and without the consent of affected community members.Footnote 31
As land disputes intensified in Bajo Aguan, agribusinesses in other areas of the country hired PSCs to guard their properties from similar conflicts. This bolstered the private security industry in Honduras as a whole, resulting in 700 PSCs registered with approximately 70,000 guards, vastly outnumbering police officers in the country.Footnote 32 At the same time, the growth of private security services exacerbated land conflicts in Bajo AguanFootnote 33 and resulted in further human rights violations including forced disappearance.Footnote 34
A prominent case involved Dinant, a food and beverage company with extensive operations in Central America, including a large palm oil monoculture farm in Bajo Aguan.Footnote 35 Allegedly, Dinant hired the PSC that harassed, killed and forcibly displaced local peasants to discourage them from claiming their rights upon land that Dinant sought to control to expand its farmland.Footnote 36 However, the government did not increase resources for prosecution and investigation of these types of crimes.Footnote 37
Honduras has extremely high rates (95–98 per cent) of ongoing impunity for crimes.Footnote 38 Crimes related to land disputes have even higher levels of impunity.Footnote 39 Consequently, public distrust in the legal system and institutions is particularly acute.Footnote 40
In this context, in 2009, the government of Honduras issued the Private Security Services Control Rules, which established that PSCs must abide by the Constitution, defined key terms, created the Security Service Providers Control Unit in charge of the PSCs registrar and permits, and established obligations and responsibilities for PSCs.Footnote 41 Nevertheless, the PSC registrar was ineffective and gun controls were not enforced.Footnote 42 Therefore, in May 2017, Congress enacted a new law that created the Private Security Services Control Department in charge of regulating PSCs, which still needs to be regulated and implemented.Footnote 43 Despite the aforementioned regulations, private security guards in Bajo Aguan continue to be accused of murder and violence to date.Footnote 44
B. Peru: Use of Police as PSCs
Reports of human rights abuses by the private security guards of Minera Yanacocha (the Peruvian subsidiary of Newmont Mining, the world’s second largest gold producer) have been ongoing since 2011.Footnote 45 The mine’s operation in northern Peru’s mineral-rich Cajamarca region has led to social conflict stemming from local residents’ environmental concerns and disputes over the ownership of Tragadero Grande, a parcel of land located within the footprint of a multi-billion dollar gold and copper project called Conga.Footnote 46 Securitas is a large PSC with headquarters in Sweden; it has 8,000 employees in Peru that Yanacocha hired from 2012 to 2016.Footnote 47 Securitas guards allegedly evicted local peasants by harassing and intimidating them, so that Yanacocha could have access to the land needed to construct the Conga gold mine.Footnote 48
Moreover, Minera Yanacocha entered into a secret agreement with the Peruvian police from 2011 until 2015 to provide private security services and rapid large-scale deployment of police units against demonstrators.Footnote 49 Under this agreement, the police acting as private security guards intimidated and harassed local communities, without regard for international human rights standards.Footnote 50 Both the police and Securitas guards have been accused of violent clashes with the Chaupe family members, using disproportionate force against them.Footnote 51 The police and Securitas failed to provide access to remedy to the community for these violations.Footnote 52
Furthermore, the United Nations (UN) working group on the use of mercenaries investigated the case of Father Marco Arana, a priest who leads the Training and Intervention Group for Sustainable Development (GRUFIDES), a large human rights and environmental movement in Cajamarca. Father Arana and other GRUFIDES activists reported harassment by Forza, another PSC hired by Minera Yanacocha. Forza was founded in 1991 by former Peruvian navy officers and in 2007 was acquired by Securitas.Footnote 53 Forza followed and monitored Father Arana, GRUFIDES members, and members from other CSOs.Footnote 54 Moreover, Forza has been accused of using violence and disproportionate force against peasants’ demonstrations, killing and wounding them.Footnote 55 Yanacocha has stated that Forza has acted on its own, without their authorization to carry out these actions.
In 2014, the Inter-American Commission on Human Rights included the Chaupe family as part of a wider precautionary measure to protect activists involved in protests against Conga gold mine exploitation.Footnote 56 Peru confirmed special measures to guarantee the family members’ safety and personal integrity.Footnote 57 In light of these circumstances, Peru issued an Executive Order No. 1,213, 2015, regulating private security services and prohibiting the army or police agents from participating, save for narrow exceptions, with PSCs, including working for or holding stocks in the companies.Footnote 58 Furthermore, PSCs can only operate under authorization of the national authority for private security services and weapons (Sucamec), which could fine business enterprises that acquire private security services from unauthorized PSCs.Footnote 59 However, local groups allege that these limitations on PSCs are not respected in practice.Footnote 60
C. Guatemala: Mines and Indigenous People
After the peace agreements of 1996 ended a decades-long internal armed conflict and the military cut its ranks by nearly two-thirds,Footnote 61 PSCs proliferated in GuatemalaFootnote 62 with a current estimate of 80,000 to 200,000 private security personnel.Footnote 63 This increase was evident in many conflicts between local communities and extractive industries operating in indigenous territories. For example, conflicts and security issues arose around the Fenix Mining Project, owned by the Canadian mining company HudBay Minerals Inc. and HMI Nickel Inc. (HMI) managed by Compañía Guatemalteca de Níquel S.A. (CGN), located in El Estor, a region with Maya Q’eqchi’ communities.
This conflict is illustrated by three major human rights cases currently pending in Canadian courts. The first case, Angelica Choc v HudBay Minerals Inc., regards the murder of Adolfo Ich, a community leader that Fenix’s private security agents allegedly shot during a forced violent eviction. Footnote 64 The second case, German Chub Choc v HudBay Minerals Inc., arose out of a shooting, allegedly by mine company security personnel, which paralysed a community member, German Chub.Footnote 65 The third case, Margarita Caal Caal v HudBay Minerals Inc., resulted from the gang rape of 11 Maya Q’eqchi’ women by Fenix’ private security, police and military agents during a forced eviction from their farms and homes in Lote Ocho, where the Fenix Project operated.Footnote 66 The plaintiffs in all three cases argue that HMI was negligent and careless in directing, controlling and supervising the private security agents who committed the crimes.Footnote 67 Moreover, the plaintiffs stated that HMI did not make reasonable efforts after the violent evictions to investigate the use of force and subsequent human rights abuses.Footnote 68
The victims have sought remedy before Canadian courts because of lack of access to an effective remedy at the local level. Guatemala’s justice system suffers from a lack of judicial independence, corruption and extreme backlogs, which contribute to high levels of impunity.Footnote 69 Guatemala also has a convoluted regulatory system for private security services. In 1970, the first statutory regulation of PSCs was enacted and later amended in 1997, to separate private security services from those of the police. In 2010, Congress enacted the Decree 52-2010Footnote 70 to regulate PSCs, including establishing licensing and education requirements, including training on the use of force and human rights.Footnote 71 However, these regulations have not been effectively enforced, due to both the weak judiciary and the overwhelming amount of private security guards in the country.Footnote 72 The presence of what is estimated to be a substantial number of unregistered security companies adds to the difficulties in enforcing these regulations.Footnote 73
D. Colombia: Multinationals and Paramilitaries
For decades, Colombia’s fertile and mineral-rich lands have attracted multinational extractive and agricultural businesses, such as coal mining companies and banana plantations. Because these businesses have carried out operations in high-conflict zones, they have contracted with PSCs to protect their personnel and assets.Footnote 74 Due to the complex dynamics of Colombia’s internal armed conflict, some extractive and monoculture companies have been associated with the United Self-Defence Forces of Colombia (AUC) paramilitary, a right-wing illegal armed group formed in the late 1990s to protect private businesses and land from local communist guerrillas, such as the Revolutionary Armed Forces of Colombia (FARC) and the National Liberation Army (ELN).Footnote 75
For example, Drummond Company, Inc. is a US-based coal company, whose Colombian subsidiary, Drummond Ltda., owns and operates coal mines and transportation infrastructure in the departments of Magdalena and Cesar.Footnote 76 Based on the testimony of former AUC leaders and Drummond contractors made under oath in legal proceedings, victims and CSOs have established that Drummond’s operations in Colombia supported AUC illegal activities.Footnote 77 From 1999 to 2004, the AUC harassed, threatened, killed and forcibly displaced peasants from the Mechoacan rural zone, adjacent to Drummond’s La Loma mining project.Footnote 78 Additionally, Mechoacan lands were allegedly transferred to Drummond, through fraudulent administrative proceedings by corrupt government officials linked to the AUC.Footnote 79
Drummond directly benefited from AUC’s operations, as they ‘cleared the path for land to be sold to Drummond for the expansion of its mining projects’.Footnote 80 Although Drummond denied the allegationsFootnote 81 and one case tried in US courts has been dismissed,Footnote 82 a former Drummond contractor and his assistant were convicted in Colombia for providing support to the AUC in the killing of two union leaders.Footnote 83 The former Head of Industrial Relations at Drummond was also charged with the murder of the union leaders (a final court ruling is still pending).Footnote 84 Moreover, in 2016 a US Court found that claims against Drummond’s officers could be litigated and a decision is pending.Footnote 85 In October 2018, the Colombian Transitional Justice Prosecutor reopened a criminal investigation into eight high-level Drummond officials regarding alleged payments to the AUC.Footnote 86 Drummond has denied any relationship with AUC in Colombia.Footnote 87
In addition, the multinational banana company Chiquita Brands admitted in 2007 that it paid the AUC from 1997 to 2004 to help them protect their fields and acquire new land to expand their banana monoculture farms in the Uraba zone, in the northern part of Colombia.Footnote 88 During these years, the AUC harassed, killed and forcibly disappeared peasants, union leaders, social activists, workers and political leaders while funded by Chiquita Brands.Footnote 89 Chiquita Brands pled guilty to the federal crime of funding the AUC Footnote 90 even after being designated as a terrorist organization, and settled to pay a fine of US$25 million to the US Department of Justice.Footnote 91 In August 2018, the Colombian Attorney General indicted 14 Chiquita Brands executives for aggravated criminal conspiracy.Footnote 92
The role of paramilitary groups as private security forces led to unique aspects of Colombia’s legal framework for PSCs. PSC training requirements have a strong emphasis on human rights, but indicative of the legacy of the armed conflict, the licensing of PSCs is conducted by the Ministry of Defence.Footnote 93
III. The International Code of Conduct and its Association: Relevance to Latin America
The aforementioned cases of human right abuses show that the Latin American region is in need of better controls for private security services and robust mechanisms to hold PSCs responsible for violations. These cases illustrate the problems regarding PSCs in the region that work at extractive sites, such as lack of vetting, impunity for crimes against local populations, and the blurring of lines between police, illegal armed groups and PSCs.
The International Code of Conduct and its Association offer a human rights framework for PSC operations that, if effectively implemented, could help prevent and remediate these types of human rights violations. The Swiss government launched the International Code of Conduct for Private Security Providers’ Association (ICoCA) as a multi-stakeholder initiative and independent mechanism mandated to oversee the implementation of the Code and the responsible provision of security servicesFootnote 94 and ‘to ensure protection and provide remedy to victims of abuse by private security providers’.Footnote 95 The following subsection will elaborate on the relevant international initiatives that have served as background for creating the ICoC, and will highlight the ICoCA’s relevant features for PSCs operating in Latin America whose clients include extractive companies.
A. Complementary Initiatives to the ICoC and ICoCA
The ICoC grew out of discussions at the international level about how to fill in gaps in the variety of frameworks and international standards applicable to the problem of human rights abuses committed by corporations in general, and PSCs in particular. While the UN Guiding Principles on Business and Human Rights apply to all business corporations regardless of their size or type of business activities, the Voluntary Principles on Security and Human Rights, the Montreux Document on Pertinent International Legal Obligations and Good Practices for States Related to Operations of Private Military and Security Companies During Armed Conflict, and a potential binding treaty currently being discussed by the UN Working Group on the use of mercenaries, seek to regulate the private security industry. These initiatives reflect competing but potentially complementary approaches advanced by governments, the security industry, regional organizations, the United Nations, and intergovernmental organizations.Footnote 96
1. UN Guiding Principles on Business and Human Rights
The international community has long sought solutions to human rights abuses by businesses and the persistent impunity around these violations. In 2011 the UN Human Rights Council endorsedFootnote 97 the Guiding Principles on Business and Human Rights (‘Guiding Principles’ or UNGPs),Footnote 98 and since then its ‘three pillars’ approach – protect, respect and remedyFootnote 99 – has become a widely accepted framework for addressing business activities that may have an impact on human rights.Footnote 100
Under the UNGPs,Footnote 101 the corporate responsibility to respect human rights exists independently and in addition to states’ duties, as a baseline expectation of all business activities.Footnote 102 Moreover, corporations should seek to prevent or mitigate adverse human rights impacts linked to their activities or business relationships with third parties.Footnote 103 To comply with these responsibilities, business enterprises should implement a policy commitment to meet their responsibility to respect human rights; conduct human rights due diligence to identify, prevent, mitigate and address their impacts on human rights; and enable the remediation of adverse human rights impacts that they have caused or to which they contributed.Footnote 104 As discussed below, the Principles on due diligenceFootnote 105 and remedyFootnote 106 are particularly relevant to the ICoCA.
2. UN Working Group on the Use of Mercenaries
The United Nations Working Group on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self-determination (hereinafter ‘Working Group’) has the mandate to study human rights violations committed by PSCs.Footnote 107 Although the Working Group has strongly supported ICoCA’s work,Footnote 108 the Working Group has also advocated for the establishment of a legally binding instrument since 2010.Footnote 109 The proposed draft Convention on Private Military and Security Companies (Convention) seeks to establish obligations for state parties to regulate private military and security companies, such as a centralized licensing system, mandatory legal training, arms regulation, and a remedy and redress mechanism for victims.Footnote 110
However, disagreements among states over the proposed provisions have been an obstacle to building consensus on the draft Convention. For example, states have different views on the extent to which national security functions should be granted to the private sector.Footnote 111 Moreover, countries with large private security industries, like the US and the UK, opposed the convention.Footnote 112 Establishing jurisdiction for a binding mechanism within member states also presents a significant challenge.Footnote 113
Consequently, for the time being there is more momentum around voluntary initiatives, such as the ICoC, than around the proposed Convention. However, a future binding treaty may eventually be a helpful complementary mechanism to the ICoCA.Footnote 114
3. Voluntary Principles
The Voluntary Principles on Security and Human Rights (the ‘Voluntary Principles’ or ‘VPs’) are an important complement to the ICoCA in the context of the extractive industry. The VPs provide standards to extractive companies on maintaining the security of their operations while respecting and promoting human rights.Footnote 115 The VPs seek to incentivize companies to join to enhance their reputation and to be able to take advantage of the sharing of best practices.Footnote 116
Although the VPs are directed at extractive companies, i.e., the clients for PSCs, as with other MSIs, the VPs also welcome civil society organizations and states as participants. Thus far the participant states from the Latin American region are Argentina and Colombia, out of a total of ten states.Footnote 117 Several multi-national mining companies that operate in Latin America, including Newmont mining (discussed above in the Peru case), are Voluntary Principles participants.Footnote 118
The VPs have been important for advancing best practices and expanding awareness of the need to prevent human rights abuses in the extractive and energy sectors. However, the VPs do not provide for a mechanism to independently monitor, evaluate or ensure compliance; the only monitoring or evaluation is voluntarily self-reported by the members.Footnote 119 As shown by the example above regarding Newmont’s operation in Peru, mere membership in the VPs has not prevented abuse by PSCs hired by VP participants. Therefore, stakeholders should urge participants to complement the VPs by engaging with other relevant MSIs, like the ICoCA. Such a complementary, multi-pronged approach is consistent with the VPs’ affirmation that private security should act in a lawful manner consistent with, inter alia, ‘emerging best practices developed by Companies, civil society, and governments’.Footnote 120
4. The Montreux Document
The direct predecessor to the ICoC is The Montreux Document on Pertinent International Legal Obligations and Good Practices for States Related to Operations of Private Military and Security Companies During Armed Conflict (Montreux Document). As its name indicates, the Montreux Document endeavours to have states regulate private military and security companies (PMSCs)’ activities when operating in an armed conflict zone.Footnote 121 This reflects its origins as a reaction to abuses committed by private military contractors during the aftermath of the US-led invasion of Iraq in 2003.Footnote 122 In this context, it is unsurprising that no Latin American states were involved in its drafting.Footnote 123 However, it is now seen as a set of best practices for states to fulfil their obligations to protect human rights at a national level regarding private security, even if such states are not experiencing armed conflict,Footnote 124 thus making it relevant for Latin America’s current political and social context.Footnote 125 Thus far, four Latin America states – Chile, Costa Rica, Ecuador and Uruguay – are Montreux Document participants.Footnote 126
In explaining the states’ obligations, the Montreux Document draws upon international humanitarian law and human rights law, including the obligation to prosecute torture and other grave crimes committed by PMSCs.Footnote 127 The Document also specifies the obligation to require vetting of PMSC personnel to ensure that they do not have a history of human rights abuse or other crimes under international law.Footnote 128
The Montreux Document was well received by the private security industry.Footnote 129 However, the industry also noted the need for a standard that would be directly applicable to PSCs, rather than through states – seen as particularly necessary in operating environments with rule of law challenges where states were not complying with the Montreux Document.Footnote 130 The Swiss government responded by developing the ICoC.Footnote 131
B. The ICoC and the ICoCA
While the Montreux Document is directed at states’ regulation of PSCs, the ICoC is complementary in that it focuses specifically on the actions of PSCs and their personnel. The Code seeks to foster better governance, compliance and accountability of PSCs.Footnote 132 The ICoC embraces the UNGPs in its Preamble and affirms that PSCs must abide by the Respect, Protect and Remedy framework, establishing undertakings for PSCs to comply with business and human rights standards.Footnote 133 The ICoC was finalized and signed by 58 PSCs in 2010.Footnote 134
Although the ICoC does not replace, limit or alter the power of national authorities, national law or international law,Footnote 135 it aims to create better governance, compliance and accountability for PSCs by laying out their responsibilities in terms of international human rights and humanitarian law. PSCs who voluntarily accede to the Code by becoming members of the ICoCA commit to numerous obligations including to ‘exercise due diligence to ensure compliance with the law and with the principles contained in this Code’,Footnote 136 and the responsibilities to ‘respect the human rights of persons they come into contact with, including, the rights to freedom of expression, association, and peaceful assembly and against arbitrary or unlawful interference with privacy or deprivation of property’.Footnote 137 For example, according to the Code and consistent with international human rights standards, PSCs may only use proportional force when strictly necessary.Footnote 138 The Code contains prohibitions of: torture and other cruel, inhuman or degrading treatment or punishment;Footnote 139 sexual exploitation and abuse or gender-based violence;Footnote 140 human trafficking;Footnote 141 slavery and forced labour;Footnote 142 hostage-taking, extrajudicial, summary or arbitrary executions;Footnote 143 and discrimination.Footnote 144 It also lays out requirements for due diligence in vetting of security personnel, i.e., conducting background checks and prohibiting those with criminal records from carrying weapons, and for training on human rights standards.Footnote 145 The ICoC also requires that PSCs establish effective grievance procedures for personnel and third parties to report, inter alia, violations of the Code.Footnote 146
The ICoCA aims to provide an inclusive forum for constructive dialogue with PSCs, in addition to ensuring that PSCs comply with specific human rights commitments outlined in the Code.Footnote 147 As with other MSIs, such as the VPs and the Montreux Document Forum, ICoCA’s membership has a tripartite structure composed of member PSCs, governments and CSOs, each of which will be discussed briefly in turn below. The three stakeholder pillars are equally represented on the Board of Directors.Footnote 148 In addition, the ICoCA at its discretion may grant a non-voting observer statusFootnote 149 to academics, consultants, companies (except PSCs), industry trade associations, and non-government organizations.Footnote 150
In order to join ICoCA, PSCs must participate in a process whereby they certify that their systems and policies meet the principles and standards of the Code.Footnote 151 Member PSCs also agree to participate in regular oversight through reporting, monitoring and assessment of performance.Footnote 152 When PSCs continuously fail to meet their membership requirements and do not comply with the Code or recommended corrective action, the ICoCA may ultimately suspend their membership.Footnote 153 Where PSC clients have required ICoCA membership as a pre-requisite to bidding on or providing services under a contract, such suspension may adversely impact the PSCs ability to continue operations. A handful of Latin American PSCs are ICoCA members to date.Footnote 154
Government members of the ICoCA make a political commitment to the principles of the ICoC and to effective governance of the private security sector, including the standards set in the Montreux Document. There are currently seven such members: Australia, Canada, Norway, Sweden, Switzerland, the United Kingdom (UK), and the United States (USA).Footnote 155 State participation in the ICoCA is crucial to increase its legitimacy and ensure that it is robust enough to provide effective prevention and remedy of human rights abuses by PSCs.Footnote 156 However, mere membership by a state in the ICoCA, without further steps to effectively implement the ICoC in its national laws or regulations, would be insufficient to meet its obligations under the UNGPs.Footnote 157
CSO members commit to supporting the Association in promoting the full implementation of the Code at the local, national and international level. This may include: holding training on the Code and Association; reporting compliance concerns to the Association; and advocating for governments and other clients, through procurement processes, to commit to contracting with responsible private security. According to ICoCA, CSO members ‘play a key role in safeguarding the human rights focus of the Association’s core functions, and in ensuring that monitoring is carried out according to established human rights methodologies’.Footnote 158 CSOs can also assist affected communities in seeking remedy through ICoCA’s complaints process (see below), and/or invoke the Code in their litigation strategies for the enforcement of human rights, thereby advancing the soft law mechanism towards a more legally binding instrument.Footnote 159 At the time of writing, three Latin American CSOs – Indepaz (Colombia), the Institute of Democracy and Human Rights of the Catholic University of Peru, and Socios Peru – are ICoCA members, out of a total CSO membership of 24.Footnote 160
Currently, the figures of Governments, CSOs and PSCs engaged in ICoCA show an overall imbalance between the stakeholders, as over 70 per cent of members are PSCs. Multi-stakeholder governance models require the full involvement of individuals or organizations that have interest in a common issue to address it on a consensus-based, transparent, accountable manner.Footnote 161 The overwhelming majority of PSCs in the membership has raised concerns over the independence and impartiality of ICoCA,Footnote 162 although rules about how the Board of Directors functions seek to avoid a potential disproportionate influence by any one pillar.Footnote 163
However, the stakeholder imbalance could also have an impact on ICoCA’s funding. The Association receives financial support from three main sources: (i) voluntary contributions from member governments; (ii) annual membership dues from observers and member PSCs, scaled to their size and revenue,Footnote 164 and (iii) one-time joining fee from PSCs and CSOs.Footnote 165 As projected in the approved annual budget for 2018, ICoCA’s largest source of funding comes from joining fees and membership dues, which at the time of writing are paid primarily by PSCs.Footnote 166 Nevertheless, ICoCA has received additional grants from observers and governments.Footnote 167 Funding from observers may be of concern given that PSC clients implicated in past human rights abuse, such as Newmont, are part of this group – see Peru case above.Footnote 168 Funding from a member government could also create a potential conflict of interest if a field-based review was conducted in its territory; however, these contributions are not project specific and will not exclusively fund field-based reviews in any particular country. Moreover, ICoCA has pledged to grow and diversify its fund base to ensure its independence and long-term sustainability.Footnote 169
C. The Potential Role of the ICoCA in Latin America
Practitioners and scholars have questioned the legitimacy of the private use of force.Footnote 170 PSCs shift the monopoly of legitimate violence out of the states’ powerFootnote 171 and can contribute to the erosion of state control over security issues.Footnote 172 In Latin America, the phenomenon of private security also promotes an ‘inequality of security’: wealthy businesses and individuals living in violent societies pay for safety that is out of reach of the average citizen, and in the process become less invested in improving public, collective security.Footnote 173 Notwithstanding these important public policy issues, practitioners also recognize that the proliferation of private security in Latin America is a reality that must be dealt with for the foreseeable future.Footnote 174 In a similar vein, the ICoCA does not take a position on the legitimacy or moral value of PSCs but rather recognizes industry growth and the services provided by PSCs in a variety of complex environments globally, including Latin America.Footnote 175
At the time of writing, however, only 8 per cent of ICoCA PSC members are from the region.Footnote 176 Given the private security problems illustrated by the case studies above, more Latin American stakeholders should engage with ICoCA to ensure that it can address the particular economic, legal and political contexts inherent in the relationship between PSCs and extractive companies in the region.
ICoCA’s main features – certification, monitoring and complaints – will be described below to provide further context for the potential application in Latin America.
1. Certification
Currently, for PSCs to be eligible for membership they must commit to obtain an ICoCA certification.Footnote 177 As discussed below, some states require ICoCA membership as a pre-requisite to doing business with the government. More non-state clients are also promulgating similar requirements. As such, ICoCA certification may be an attractive business decision for PSCs.Footnote 178 At the time of writing, only 13 PSCs out of 94 have achieved full ICoCA certification, none of which are from Latin America, showing room for growth in this space.Footnote 179
ICoC affirms that in obtaining certification, member PSCs endorse the ‘Protect, Respect and Remedy’ framework of the UNGPs, making particular reference to ‘due diligence to avoid infringing the rights of others’.Footnote 180 Nevertheless, the ICoC does appear to follow all of the human rights due diligence obligations for corporations established in Guiding Principle No. 17,Footnote 181 and does not expressly require PSCs to have a full-fledged human rights due diligence procedure in place to undertake a proper assessment of their human rights impacts.Footnote 182 Although an in-depth comparative analysis between risk management and human rights due diligence schemes is outside the scope of this article, it can be noted that the ICoC approves of risk management procedures insofar they allow PSCs to ‘deter, monitor, report, and effectively address adverse impacts to human rights’.Footnote 183 Under the ICoCA’s certification procedure, the Board recognizes standardsFootnote 184 that are consistent with the ICoC and defines for each standard additional requirements relative to PSCs human rights performance and impacts.Footnote 185
When considering whether ICoCA certification of PSCs in Latin America is needed, several socioeconomic variables must be considered. For instance, increasing numbers of military and police personnel are joining PSCs in search of higher salaries.Footnote 186 This is problematic when PSC guards who were previously trained by their government in the use of weapons and counterinsurgency operations apply the same methods for military operations to private security situations.Footnote 187 Moreover, some of these former soldiers may have post-traumatic and reintegration issues that PSCs do not assess or mitigate,Footnote 188 which can be an additional factor resulting in human rights violations when tensions arise between extractive industry clients and local communities.Footnote 189
Taking the above into consideration, the obligation of vetting under the CodeFootnote 190 is particularly salient for Latin America. Many countries in the region experienced periods of dictatorships or internal armed conflict resulting in grave human rights abuses in recent decades.Footnote 191 Ex-soldiers and demobilized fighters who remain within the security field often seek employment with PSCs. However, insufficient vetting procedures cannot guarantee that employees with credible allegations of human rights violations are effectively barred from PSC employment.Footnote 192
In this sense, it should be noted that the ICoCA reports that since 2015, it continues to develop, test and promote performance and compliance indicators for Code standards including the selection, vetting and training of personnel.Footnote 193 The indicators assist the ICoCA in assessing whether PSCs have proper selection and vetting procedures in place in addition to whether PSCs are actually implementing the procedures at the time of recruitment.Footnote 194 To evaluate selection and vetting compliance, the ICoCA considers whether or not personnel will carry weapons, the availability of background checks, and other sources of information such as public records, human rights reports, news reports, interviews with communities, prior job references and experience, among others, to ensure that PSCs conduct a meaningful evaluation of an applicant’s physical and mental fitness to provide security services.Footnote 195 The ICoCA is also emphatic that selection and vetting processes are not initial evaluations only, but entail ongoing assessments to ensure that personnel retain the requisite fitness to abide by human rights standards throughout the duration of employment.Footnote 196
2. Monitoring
The confidentiality and secrecy surrounding PSC operations accentuate the need for transparency and accountability mechanisms.Footnote 197 The nature of private security operations involves PSCs handling confidential information of various sorts, from security schemes, intelligence methods, and firearms management, to client lists and personnel vetting and training. Moreover, rogue PSCs have implemented questionable legal practices to incorporate different firms when governments seek to regulate the industry or avoid responsibility for human rights violations.Footnote 198 These aspects could undermine compliance with the ICoC and pose serious challenges to monitoring by the ICoCA. Since the ICoCA’s monitoring procedures were ratified relatively recently (in 2016), more information will be needed over time to accurately assess their effectiveness.
In spite of the potential challenges that monitoring ICoC compliance could face, the ICoCA endeavours to do so through remote monitoring – including by reviewing news articles, human rights reports, country reports and complaints it receives – and in-country missions or ‘field-based reviews’.Footnote 199 Since 2016, the ICoCA has also worked to develop a company self-assessment (CSA) reporting system, regarding PSCs’ policies and their actual implementation of the ICoC. Aligned with the performance and compliance indicators, the CSA system aims to guide PSCs through a self-assessment of their compliance with the Code, at the outset and in particular, with Code selection and vetting requirements.Footnote 200 Although the ICoCA aims to publish the format and focus of the CSA reports,Footnote 201 it will not disclose PSC responses in order to encourage honest disclosure regarding implementation of the ICoC and to preserve the confidential dialogue with PSCs aimed at improving performance and addressing compliance concerns.Footnote 202 A problem with this is that it limits public oversight and diminishes CSOs’ ability to keep track of PSCs’ compliance with the ICoC. That being said, the CSA system and accompanying indicators provide transparent metrics for both the public and PSCs as to what should be expected with regard to compliance with the Code.Footnote 203
Field-based reviews may be initiated by the ICoCA as a result of a compliance concern or at the request of a member of the Association – including government or CSO members.Footnote 204 ICoCA has conducted reviews of more than ten member PSCs operating in Africa and the Middle East, which have largely focused on PSCs’ compliance with selection, vetting and training requirements in the Code. The ICoCA reports that the reviews have informed its understanding of the challenges facing PSCs where background checks may be unavailable or unreliable.Footnote 205 Such lessons learned could be useful tools for PSCs, states and civil society in Latin American countries where there may be similar problems regarding records.
At any point, but normally where compliance concerns arise, the ICoCA could enter into a confidential dialogue with PSCs to facilitate improvements of their performance and to identify and communicate implications of continued non-compliance.Footnote 206 If a breach to the ICoC is identified, the ICoCA will request the non-compliant PSCs to take corrective actions within a specific period of time. Failing to take reasonable corrective actions or to act in good faith in accordance with the ICoC could enable the ICoCA to initiate suspension or termination proceedings.Footnote 207
Although the private security industry has become susceptible to reputational damage due to allegation of human rights abuses,Footnote 208 sanctions such as expulsion from the ICoCA remain insufficient to fully address these problemsFootnote 209 and more meaningful and effective mechanisms of accountability to control PSCs’ operations are needed, like referral of non-compliant actors to national authorities both in host countries and origin countries.Footnote 210 Nonetheless, monitoring of PSCs by an international entity such as the ICoCA would be an improvement over the status quo in Latin America, where the fundamental problem with PSCs is the absence of effective governmental regulations and independent controls.Footnote 211 Although most Latin American countries have adopted specific laws governing PSCs, these fail to provide in-depth oversight powers to public authorities or allocate sufficient budgetary resources to ensure accountability for private security operations.Footnote 212 As a result, PSCs have been functioning in Latin America with limited public oversight and a lack of transparency with regard to weapons control, recruitment of employees, and due diligence with respect to contracts and subsidiaries,Footnote 213 becoming ‘powerful entities operating outside the state’s control and often with impunity’.Footnote 214 Therefore, Latin America is in need of additional tools such as the ICoCA to promote respect for human rights by PSCs and accountability for abusive practices.Footnote 215
The ICoCA’s monitoring procedure could also empower communities and CSOs in Latin America to shed light on human rights abuses by PSCs, as it provides avenues to receive and act on human rights reports received during remote monitoring and field-based reviews. However, in the context of the extractive industry, ICoCA should be sensitive to potential tensions or social conflict when engaging with affected communities, given that such PSCs’ clients may be welcomed by some community members – for the perceived or actual economic opportunity they bring – and rejected by others because of perceived or actual environmental degradation, land rights disputes, or lack of consultation.Footnote 216 In particular, the ICoCA should consider the real risks that human rights defenders and activists may be facing in reporting on violations,Footnote 217 and take steps to ensure that they do not face reprisals for engaging with the Association. While the ICoCA does not have a formal mechanism for protecting human rights defenders, when requested it does ensure confidentiality and takes protection concerns into account when reviewing complaints (see below).Footnote 218
3. Complaints
The ICoCA requires companies to have grievance mechanisms in line with the UNGPs standards on remedy.Footnote 219 ICoCA’s complaints function and procedures endeavour to facilitate access to fair grievance procedures that offer remedies for individuals affected by PSCs’ operations.Footnote 220 The ICoCA facilitates complainants pursuing the most effective avenue for receiving an appropriate remedy, advancing the remedy pillar of the UNGPs.Footnote 221 The ICoCA does not provide its own remedy procedure, but rather oversees the adequacy of member companies’ complaint procedures by providing guidance to companies in operating fair and accessible grievance procedures and to complainants in navigating access to remedy options. As a result, the ICoCA remains neutral in the process.
An individual, a group (employees or community members) or a representative of either (unions or NGOs) can make a complaint. If the complaint alleges harm, the ICoCA considers whether it also asserts criminal activity and whether there is a competent authority with jurisdiction to refer the case. The ICoCA further reviews the complaint and determines if the company’s grievance mechanism meets the ICoC standards, such as whether it: establishes procedures for reporting violations of Code principles and applicable law; is ‘fair, accessible, and offer[s] effective remedies’; and whether the Company ‘investigate[s] allegations promptly, impartially and with due consideration to confidentiality’.Footnote 222 In this assessment, the ICoCA takes into account the environment the harm alleged, the adequacy of the company grievance procedure and the wishes of the complainant, in particular whether the complainant may be at risk or face protection concerns.Footnote 223
If the PSC’s grievance mechanism is adequate, the ICoCA informs the complainants of their options for pursuing their claim in addition to the company’s complaint mechanism, such as NGOs mechanisms, arbitration, mediation, and administrative or judicial proceedings.Footnote 224 If it is found to be inadequate, the complainants are likewise informed of alternative options and offered the ICoCA’s ‘good offices’ to help resolve the dispute.Footnote 225
Voluntary complaint procedures made available by companies have their drawbacks: they may intimidate claimants due to the existing imbalance between the parties, in terms of financial resources, access to information, and expertise, among other reasons.Footnote 226 In addition to regulatory gaps in domestic law, companies could use these voluntary remedy programmes to block or avoid legal action, increasing impunity for human rights abuses.Footnote 227 However, such complaint procedures may resolve disputes more efficiently than judicial mechanisms, particularly in Latin American countries dealing with serious rule of law challenges including long delays in case processing. In fact, the UNGPs recognize that non-judicial remedies complement and supplement judicial ones, especially where issues arise between companies and local communities that have not yet become legal disputes, but still need to be effectively addressed.Footnote 228 In this context, the ICoCA’s oversight of company complaint mechanisms may help strengthen them, provided it encourages the implementation of fair and effective procedures by its members.
The ICoCA’s guidance to victims on remedy might also be particularly helpful to human rights defenders in Latin America working on issues related to extractive projects – mining, hydroelectric, and increasingly, agribusiness such as monocultures.Footnote 229 Defenders who advocate against precisely these types of projects are subject to threats, violence, harassment and the phenomenon of criminalization – the misuse of the justice system to unfairly prosecute or otherwise seek to restrict the work of human rights defenders, such as through the filing of frivolous lawsuits.Footnote 230 While defenders in the Americas are criminalized for their legitimate work in defence of human rights in the face of extractive projects, they also report that the justice system does not fairly adjudicate their own claims against those affiliated with such projects. In this context, non-state-based judicial grievance mechanisms,Footnote 231 such as those facilitated by the ICoCA, could be better avenues in practice. The ICoCA’s complaints system also offers the possibility for victims to remain anonymous,Footnote 232 which can help protect defenders at risk.
Scholars have raised doubts about the benefits of the ICoCA’s complaint procedure, as victims already have the option to file complaints with the PSCs’ grievance mechanism.Footnote 233 However, the company grievance mechanisms of ICoCA member PSCs are subject to monitoring and oversight. In June 2018, the ICoCA launched Guidance on Company Grievance MechanismsFootnote 234 for Member PSCs to ensure that they are accessible, independent, and provide effective redress for victims of human rights abuses.Footnote 235 In line with the UNGPs, the guidance provides additional tools for PSCs to put in place an effective grievance mechanism to address the substance of a complaint and grant appropriate relief.Footnote 236 Therefore, the ICoCA’s complaint procedure could represent a standardized mechanism for an effective reporting, sanctioning and remedy system to hold accountable PSCs for human rights violations.Footnote 237 This could complement the UNGPs’ mandate for businesses to provide remedy and implement ‘means for those who believe they have been harmed to bring this to the attention of the company and seek remediation, without prejudice to legal channels available’.Footnote 238
As the Association remains a relatively new initiative, its complaints procedure remains largely untested.Footnote 239 However, considering the above information, it appears that the ICoCA provides a viable mechanism for PSCs in Latin America to adjust their business activities to international human rights standards.
IV. Mandatory ICoCA Membership: Making Soft Law Compliance a Requirement
Latin American states can play a key role in incentivizing PSCs that operate in their territory to join the ICoCA. Because it is a voluntary association, the ICoCA relies heavily on PSCs’ reputational concerns and market pressure for enforcement of the Code, calling for PSCs’ clients to give value or preference to those companies that have committed to operating in accordance with higher due diligence standards and with respect for human rights as outlined in the Code.Footnote 240 The role of governments in procuring private security services becomes key here. To show a commitment to improving the private security environment in their countries, Latin American governments should consider requiring or incentivizing ICoCA membership for PSCs and their subcontractorsFootnote 241 in public procurement policies, contracts, operation licenses and permits.Footnote 242 In fact, the ICoC has already become a point of reference for regulatory initiatives in several countries.Footnote 243
For instance, the UK has adopted an industry-led rather than a statutory form of regulation for PSCs.Footnote 244 The Security in Complex Environments Group (SCEG) is a British public–private partnership that requires its members to become ICoCA members and abide by the UNGPs.Footnote 245 The SCEG provides support to the UK Government in the regulation of PSCs and has become an authoritative source on private security policy and regulation to implement transparent and robust standards for UK PSCs.Footnote 246 For their part, Switzerland and the USA have enacted laws that require membership in the ICoCA of PSCs for certain types of public procurement. Under the Swiss Federal Act on Private Security Services Provided Abroad, PSCs domiciled in or operating from Swiss territory and providing security services abroad must be ICoCA members, along with PSCs that provide services to the Swiss government.Footnote 247 The United States Department of State’s Bureau of Diplomatic Security also requires that PSCs be ICoCA members to qualify for contracts under the Worldwide Protective Services II Program.Footnote 248
Drawing upon the regulatory examples from Switzerland and the USA and adapting them to the national context, Latin American states could transform the ICoC into a legally binding instrument.Footnote 249 Although industry-led regulation systems, like the one observed in the UK, could be the least burdensome approach for governments,Footnote 250 client-based market pressure alone may not be enough to successfully implement the ICoC in Latin America, where many extractive companies that hire PSCs are also involved in human rights abuses.Footnote 251 Using the ‘market to regulate depends on clients actually valuing human rights and having sufficient market power to make compliance with the ICoC a factor that [businesses] compete on’.Footnote 252 This may not the case of Latin America where, as illustrated above, unstable social and political environments coupled with the high demand for private security personnel have enabled PSCs to circumvent government controls.Footnote 253
Taking the above into consideration, Latin American governments could implement regulations to the effect that the violation of ICoC would entail not only suspension or expulsion from the ICoCA,Footnote 254 but also termination of government contracts and administrative fines, among other redress mechanisms available in domestic laws. This would be useful when government agencies directly procure private security services – for example, to guard a state-owned mine or other extractive projects. Moreover, Latin American governments could tie ICoC compliance across the private security and the extractive industries. For example, governments could require extractive companies to hire ICoCA-member PSCs as a condition to granting a mine concession. Violation by the extractive companies could result in suspension or termination of the permit, claims for breach of contract, termination of contracts, being dropped from preferred supplier lists, or being banned from participating in public bids.Footnote 255 In this sense, contracting an ICoCA member PSC would be equated with higher quality services and lower risks for the client.Footnote 256
By enacting statutory regulations implementing the ICoCA, Latin American governments would be able to argue that they have taken necessary steps to fulfil their obligations to protect human rights under the UNGPs, which are based on the binding obligations of states to prevent and punish human rights abuses by private actors such as businesses, and to provide access to justice for victims.Footnote 257
While requiring ICoCA membership for procurement in Latin America might be an aspirational goal given that governments in the region have long failed to perform independent and effective control over PSCs, ICoCA certification, monitoring and complaints procedures offer useful tools for supporting enforcement of the ICoC at a domestic level. Montreux Document membership by Latin American states should be encouraged concomitant to ICoCA membership, given the complementary nature of the two MSIs. This could be further advanced by participation in the VPs given the relationship between PSCs and the extractive industry in the region.
Furthermore, increased membership by Latin American CSOs in the ICoCA could help address challenges in the implementation and enforcement of the ICoC. CSOs could use their governments’ membership in the ICoCA as leverage in advocacy efforts, e.g., to encourage or pressure the state to live up to its human rights commitments by effectively regulating PSCs and holding them accountable for abuses.Footnote 258 If the government does not take effective measures to implement the ICoC, member CSOs can also urge the ICoCA to take appropriate action by sharing information about abuses or problematic patterns by member PSCs. Even in instances when local PSCs are not ICoCA members, affected communities and concerned CSOs might consider advocating before the local and national governments to push for regulation of the private security industry in line with the ICoC.
The ICoCA’s relevance in the region depends on the active involvement of each of the three pillars: PSCs, governments and CSOs. This is vital not only for an effective enforcement of the ICoC, but also to maintain the independence of ICoCA. Taking into consideration that the ICoCA obtains its funding from dues and fees paid mainly by PSCs and states, active involvement of CSOs is key to help oversee resource management and funds allocation to prevent the ICoCA from being captured by private and government interests contrary to human rights standards.
In light of the above, the ICoCA should engage in active recruitment of Latin American members from the three pillars,Footnote 259 with special attention paid to potential state members given their power to have a multiplier effect by incentivizing or requiring PSCs to comply with the Code.
V. Conclusion
The ICoC offers a comprehensive framework for governance and oversight of PSCs, which is rooted in human rights principles. Given the particular regional context of extensive extractive operations and the growing private security industry in Latin America, the ICoCA would complement local legal systems to advance human rights and provide redress for PSC abuses. This is crucial in countries with weakened institutions and unstable political environments, where corruption and lack of respect for the rule of law provide an enabling environment for human rights abuses. Because most PSC members of the ICoCA are from Europe or the USA, the ICoCA’s success will depend on its ability to expand its membership to other regions in need of a comprehensive accountability and remedy mechanism for human rights violations perpetrated by PSCs.Footnote 260 Currently, there are no Latin American government members, and few CSOs and PSC members from the region. Greater engagement by these stakeholders with the ICoCA has the potential to strengthen the respect and protection of human rights in Latin America and even, in the long term, serve as a model for other areas of the world facing similar problems.
Acknowledgements: The authors wish to thank Rebecca DeWinter-Schmitt and Jonathan Carlson for their comments, and Sophia Arrighi and Brittany Neihardt for their assistance in producing this article.
