TSM Worldwide LLC

By Jeff Moran | Geneva

On August 16th, the Obama Administration signaled tentative plans to support a new scheme to legally bind government military and security services contractors into complying with international humanitarian law, human rights law, arms control and disarmament law, as well as other requirements of the United Nations (UN) Security Council.[1]

The scheme applies to private military and security services contractors (and their subcontractors) doing business with the United States Department of State.  No details were given about applying the new scheme to all federal contracts or if any state procurement agencies plan to do the same.  The concept of the plan would be to obligate all contractors to be members of the newly formed International Code of Conduct for Private Security Providers Association (ICoCA).

This FAQ is designed to answer questions about the ICoCA and to explore some of the implications of the Obama Administration plans:

1. What is the ICoCA?
2. What does the Code entail?
3. How did the Code and ICoCA get started?
4. What motivated the creation of the ICoCA?
5. How does the ICoCA Make Decisions?
6. How are companies reacting to this?
7. Will all states adopt the Obama Administration approach?
8. Why might a States and Companies keep their distance from the ICoCA?
9. What are the strategic industry implications?

1. What is the ICoCA?

The ICoCA is a start-up industry oversight and dispute resolution mechanism championed by the Swiss Foreign Ministry’s Human Security Division for Peace, Human Rights, Humanitarian Policy, and Migration and the International Committee of the Red Cross (ICRC).[2]  It has also received important support from the Geneva Academy of International Humanitarian Law and Human Rights, and the Geneva Centre for the Democratic Control of the Armed Forces.  According to its Articles of Association (AoA), the purpose of the ICoCA is to:

“[P]romote, govern and oversee implementation of the International Code of Conduct for Private Security Service Providers (hereinafter “ICoC” or “Code”) and to promote the responsible provision of security services and respect for human rights and national and international law in accordance with the Code.”[3]

2. What does the Code entail?

The Code explicitly prohibits the use of force by private military and security corporations and their subcontractors (except in self-defense), torture, sexual abuse and exploitation, gender-based violence, slavery, forced labor, child labor, discrimination, and human trafficking.  The Code also prohibits or limits possession, use, and transfer of weapons and ammunition under “any applicable law” and, among other things, creates new international rules on training and recruiting while requiring identification and accounting of all ammunition controlled by the companies.   Among other things, the Code implicitly bans the use of expanding hollow-point ammunition in circumstances where contractors are performing other than bona fide law-enforcement duties.

“Any applicable law” could be interpreted by more progressive humanitarian lawyers to mean national and regional rules, customary international law, and various standards and multi-lateral national agreements, as well as the small arms framework.[4]  Eventually the Code may become the basis for more binding legal instruments and perhaps lead to contractors facing prosecution for war crimes and crimes against humanity in the International Criminal Court in some jurisdictions.

3. How did the Code and ICoCA get started?

The Code and the ICoCA got their start back in November 2006 when the ICRC and Swiss Foreign Ministry called a closed meeting of experts later resulting in the Montreux Document in 2008.[5]  According to Paul Seger, of the Swiss Foreign Ministry’s Directorate of International Law at the time, the point was to ultimately establish legal standards for security companies working in conflict zones around the world:

“The number of military security companies has been growing worldwide and has reached an international dimension.  There are more and more states that make use of such private military and security companies.  Therefore we believe it is the right moment to remind states of their international obligations if they give mandates to such companies.  The aim is to reach some common standards of applicable international law in using such companies.”[6]

4. What motivated the creation of the ICoCA?

To the normative entrepreneurs behind ICoCA, the Code is part of a broader strategy to make corporations and their personnel compliant with developing international norms and standards that have traditionally applied only to states and their organs.

What continues to motivate such entrepreneurs are the spectacularly bad cases of contractor misbehavior in Iraq, Afghanistan, and the Balkans over the past 10-15 years.  Blackwater, CACI, DynCorp, and Titan Corporation are the largest firms variously named in various reports of excessive if not arbitrary use of lethal force, use of prohibited weapons and ammunition, enforced disappearances, sexual abuse, torture, the killing of detainees.[7]

The Code is also seen as reinforcing the continuously developing United Nations “small arms process” of transnational small arms control and disarmament.[8] Embedded deep into collective psyche of some small arms process advocates are the false assumptions that proliferation of small arms and ammunition are universally incompatible with a thriving civil society and that the source of weapons problems globally, and especially for the most fragile states, are rogue arms-trafficking international military firms.[9]

5. How does the ICoCA Make Decisions?

The ICoCA is governed by its own General Assembly (GA) and Board of Directors (BoD).  The GA and BoD are drawn from three different but equally weighted membership classes.  These “stakeholder pillars” are: 1) corporations, 2) intergovernmental organizations and states, and 3) humanitarian civil society groups.

The BoD is the executive decision making body but the GA has the power to expel corporate members “at any time” and to even veto the BoD on matters pertaining to amendments to the Code, Articles of Association (AoA), and other matters such as the membership eligibility certification of corporations.  While individual members of each pillar have a single vote on the GA, the various majoritarian decision rules are such that the political advantage goes to the individual members within the stakeholder pillar comprised of the fewest members.

For now decision rules seem likely to skew relative influence of a given member towards the humanitarian civil society stakeholder group, which has fewer members.

6. How are companies reacting to this?

The ICoCA is proving to be popular internationally.  In fact, there are nearly 700 private military and security companies set to become part of the ICoCA.  However, the membership is mostly Western European.  Nearly two-thirds of the ICoCA’s corporate stakeholder pillar is European with the majority of these companies (208 at the moment) being headquartered in the United Kingdom.[10]  This doesn’t bode well for members from the United States, the Middle East, or Asia, who come from significantly different cultural and national contexts, and might have divergent views on some aspects of the Code.

With only 64 members, American members seem destined to be outnumbered and outmaneuvered by European firms who have relative economic and political advantages based on their proximity to Geneva and their familiarity with transnational governance (and lobbying) a la the European Union.  This being said, the dominance by European firms (UK firms in particular) relative to American firms should not be surprising.  This phenomena is congruent with the balance of firms and states supporting other global governance initiatives such as the Arms Trade Treaty (ATT).

If ATT advocacy history is any guide, the action with respect to the ICoCA will not be entirely about the strategic advancement of humanitarian arms control and disarmament positions.  I will also be about advancement of international competitive positions (i.e. firms managing their competitor landscape or states protecting their national tax base).

7. Will all states adopt the Obama Administration approach?

Many will, but certainly not all.  The humanitarian campaign behind Code has been lopsidedly effective among Western European states, and leaving much to be considered elsewhere.  This geographic imbalance does not bode well for its effectiveness as a truly global norm.  Global effectiveness depends upon, among other things, buy-in from Russia and China and their companies.  These two special case states rarely view the UN’s more progressive humanitarian agenda items as compelling let alone a good cultural fit.  Given the distinctly Western European majority of the ICoCA, other states and their companies may soon come to realize their disadvantageous position and keep their distance, or at least engage only to keep up appearances.

8. Why might states and companies keep their distance from the ICoCA?

They might conclude that membership could become an open invitation for undue external influence, politicized scrutiny, and/or arbitrary legal challenges.  States could see membership as leading to unwanted interference in their foreign defense and security policies and as infringements on their national sovereignty.  Such fears are not unfounded given the very nature the ICoCA’s own General Assembly (GA) as, among other things, a forum for naming and shaming.

The reliance on contractors by many national intelligence agencies is not an insignificant matter to consider.  Agency officials and even the Heads of State may ultimately decide it is not in intelligence or the national interests to require membership in ICoCA and thus steer clear of the ICoCA.  Given the broad appeal of this logic for many democratic and non-democratic states alike, the ICoCA may end up amounting to little more than a Eurocentric public relations charade for humanitarian and corporate self-interests alike.

9. What are the strategic industry implications?

Created by Swiss advocacy groups and government lawyers, the ICoCA and its Code are aimed at reigning-in private military and security services industry and their government clients for the good of humanity.  For American firms, the Obama Administration’s apparent willingness to embrace this scheme through contracting law will have broad implications.  It could also affect contractors in the adjacent firearms, ammunition and related products segments.  This could even lead to secondary effects that result in further restrictions, controls, or prohibitions affecting the individual civilian consumers of such product companies.

For service providers in general, the association is a major game changer that entails significant management controls upgrades as well as significant resource allocation for the implied requirements of Geneva-based international corporate diplomacy.  This may require persistent and expensive lobbying presence in Geneva to be effective.  The economic and non-economic costs of ICoCA compliance and engagement may prove too much for smaller firms and precipitate some market consolidation.

Corporate ICoCA engagement and support for its Code will be most competitively advantageous for its largest European industry supporters.  This said, even with numerically marginal status conferred upon non-European firms, effectively buying into the creation of regulatory burdens on themselves may be beneficial…doing so tends to keep less resourced competitors at a distance if not off the playing field altogether.

Thus, for whatever humanitarian value the ICoCA may have, it will likely serve business interests as a welcome trade barrier against new entrants in favor of incumbents.  Over the long run, the promotion of the ICoCA will likely result in less competition, higher costs for governments, higher profits for companies, and the growth of a handful of very large globally integrated private military service firms.

See related article on the implications of the ICoCA and its Code on adjacent firearms related industries, arms rights civil liberties, and democratic national sovereignty here.

 

Notes

[1]  See United States Department of State Media Note here.

[2] The website for the ICoCA is here.

[3]  The Articles of Association are here.

[4]  The global small arms control framework includes the 2001 Firearms Protocol, 2001 Program of Action (on small arms), the 2005 International Tracing Instrument, 2013 Arms Trade Treaty (ATT), and the the United Nations International Small Arms Control Standards (ISACS).  Go to here for a summary table depicting the scope of these agreements.

[5]  See 2006 interview with a Swiss official describing aims here.  The Montreux Document is here.

[6] Ibid, interview.

[7]  Blackwater, CACI, DynCorp, and Titan Corporation have each made into the press over the years related to various allegations.  Some individual employees have been fired and prosecuted.  But watchdog organizations such as Human Rights Watch believe many individuals and their corporate employers haven’t been held accountable to any meaningful degree.  For more information on these companies in particular, start by visiting their Wikipedia pages here: Blackwater, CACI, DynCorp, and Titan Corporation.

[8]  The United Nations small arms process is a multi-lateral arms control and disarmament effort aimed at reducing the availability and access of small arms globally.  Its most aggressive proponents seek to ban civilian possession of all small arms and ammunition from civil society and to ban companies from contributing to armed violence and hold them financially accountable for the costs of armed violence.  Mexico, Austria, Norway, Switzerland, and Costa Rica along with most central African states are the most ambitious in this regard.  One particularly influential research / advocacy organization engaged in expanding and tightening small arms controls is the Geneva-based Small Arms Survey (SAS).  Sarah Parker, a SAS senior research and contract policy writer for the UN, published an introduction to the small arms process in 2012 with Marcus Wilson.  This publication is a good starting point for anybody seeking more information, here.  The Program of Action, ISACS, and the ATT are distinct but interrelated agenda items on the UN’s small arms process.  Find more context and commentary on the advocacy for these agenda items here.  Find other more academic papers on ISACS here and the ATT here.

[9]  In the late 1990s and for most of the 2000s, academics and advocates for global restrictions on the possession and use of small arms have argued that international trafficking and civilian possession of small arms caused widespread armed violence.  The scholarship on this has since invalidated this basic assumption and some researchers have come around to acknowledging this.  One influential study of studies in 2011 finally concluded that for most countries and especially for the most fragile states, the problems of firearms has little or nothing to do with international trafficking and more to do with the lack of rule of law within a country’s borders, corruption and theft from government weapons depots.  See Owen Greene and Nicholas Marsh, eds.  Small Arms, Crime and Conflict: Global Governance and the Threat of Armed Violence.  Routledge: 2011.  P. 90-1.

[10]  A list of companies agreeing to abide by the ICoC is here.  See ICoCA website referenced in Note 2 for a map of map of members by country.

 

About The Author

Jeff Moran lives in Geneva, Switzerland and is a consultant specializing in the ethical and responsible development of the international defense, security, and shooting sports industries at TSM Worldwide LLC.  Previously Mr. Moran was a strategic marketing leader for a multi-billion dollar business unit of a public defense & aerospace company and an American military diplomat.  He is currently studying weapons law and lawmaking process within the Executive LL.M. Program of the Geneva Academy of International Humanitarian Law and Human Rights.  Mr. Moran has an Executive Master in International Negotiations and Policymaking from the Graduate Institute of Geneva, an MBA from Emory University’s Goizueta Business School, and a BSFS from Georgetown University’s Walsh School of Foreign Service.

 

First Published: 8 September 2013
Last Updated: 8 September 2013

 

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