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The Obama Administration’s endorsement of a Swiss global oversight scheme for government defense and security contractors is a warning for not only the shooting industry, but for civil arms rights and democratic national sovereignty.

By Jeff Moran | Geneva

On August 16th, the Obama Administration signaled tentative plans to support a new scheme to legally bind government 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 procurement agencies or encouraging state procurement agencies 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).[2]  The official launch of the ICoCA is scheduled for 19-20 September in Geneva, and is on schedule to become the latest example of institutionalized eurocentric transnational governance by anti-industry lawyers and policy activists.[3]  The Code of Conduct (“Code” hereafter) is the brain child of Geneva international non-governmental organizations (NGOs) and lawyers within the Swiss Ministry of Foreign Affairs seeking to develop “common standards of applicable international law” and a means to effectively monitor and sanction industry.[4]

The Code’s least controversial provisions prohibit the use of force by private military and security contractors (except in self-defense), torture, sexual abuse and exploitation, gender-based violence, slavery, forced labor, child labor, discrimination, and human trafficking.[5]  However, while the Code is non-legally binding “by itself,” over the course of fifteen-pages, it does mention “law” over 60 times.  Of these mentions, 11 were as part of “international law” and two were part of the catch-all “any applicable law” in sections describing prohibitions and controls over weapons, ammunition, and war materiel.[6]  This gives rise to three more controversial implications:

First, the Code will effectively create legal obligations to the extent it is wedged into national legal jurisdictions through administrative procurement policy changes.[7]  The more places the Code is wedged, the more it becomes a tool for crystallizing corporations and their employees as de facto subjects of public international law, a cause célèbre for progressive human rights lawyers.[8]

Second, the Code reinforces controversial aspects of the UN’s transnational lawmaking “small arms process.”[9]  For example it adds normative pressure for, among other things, ammunition manufacturers to uniquely identify and trace individual rounds of ammunition, in addition to small arms, their components, and related tools and equipment.[10]  The marking and tracing of ammunition, a consumable and recyclable commodity, as well as components and related tools and equipment have been controversial international small arms control agenda items for years.[11]  As such, it remains a white-hot issue not only for feasibility-minded businesses and military logisticians, but for privacy-minded civil arms rights groups, and the majority of competitive marksman and those hunters who reload their own ammunition in the United States.[12]

Third, the formula Code of Conduct + Contracting Policy Change is a transnational mechanism reinforcing the battle effort for unconventional lawfare against industry and their government clients.  As such, it is akin to deploying a Trojan horse at the gates of domestic legal systems.  Once inside the gate, anti-industry and anti-government legal warriors spring into action with lawsuits to render targeted companies and government foreign policies hors de combat.  This is consistent with professed battle doctrine by Geneva international lawyers and other anti-industry activists for supranational governance bodies.[13]  So, when battle fog lifts, victorious offending lawyers might smugly argue the spoils are good for humanity.  And they might be right.  However, the clearest losers, democratic states that respect the rule of law to begin with, would grow weaker amputating more of their independence and national sovereignty (while less inviting authoritarian states grow stronger preserving theirs by simply keeping their gates closed).  Will the doctrine of lawfare on relatively soft democratic states be recognized as counterproductive to the global humanitarian cause? Perhaps, but not likely.

The scenarios for industry could go a number of ways.  If the ICoCA initiative pans out as advocates hope, it may precipitate an International Code of Conduct for the Small Arms Trade Association.  This might presumably be to govern makers and distributors of small arms, accessories, ammunition AND “all parts and components that can be used for their manufacture, repair and assembly.”[14]  If Swiss-based international legal warriors mobilize again, firms would likely face their own Trojan horse eventually.  Mobilized legal warriors might see such a strategy as a surefire way to achieve multiple objectives with respect to the UN’s Program of Action on Small Arms, International Small Arms Control Standards, and the evolving Arms Trade Treaty.[15]

Taking things to a logical conclusion, such developments would result in a giant leap forward for campaigners and legal warriors in favor of legally binding international prohibitions on civilian possession and use of small arms and related products, the end of the international arms trade, and expansive subordination of national legislation and policymaking process to global governance bodies.[16]  Ultimately, the Obama Administration’s apparent willingness to require contractor membership in the ICoCA should cause civil arms rights libertarians, the broader shooting industry, and democratic national sovereigntists to take notice and mobilize accordingly.

Click here for our expanded FAQ on the Code and the global governance mechanism designed to enforce it.

 

Notes

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

[2]  The website for the ICoCA is here.  The Code of Conduct is here.

[3]  An earlier example was adoption of the United Nations Arms Trade Treaty (ATT) in April.  The Swiss Federal Council unveiled a proposed national ban on private military companies in January 2013, see announcement here.  Fifty-nine percent of the nearly 700 corporate members already on board are headquartered in Europe.  Firms based in the United Kingdom account for a majority of Europeans member firms.  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.

[4]  The plan towards a Code of Conduct was initially developed in a 2006 closed door meeting between the Geneva-based International Committee of the Red Cross and the Swiss Foreign Ministry.  According to Paul Seger of the Swiss Foreign Ministry’s Directorate of International Law, the point was to establish legal standards for security companies working in conflict zones around the world.  See official 2006 interview here.  This initial meeting led to the publication of the Montreux Document several months later, here.

[5]  See Code in Note 2, Sections 28 – 43 for rules on conduct, and prohibitions related to use of force and treatment of others in the course of performing military or security service contracts.

[6]  Section 14 of the Code’s general provision states the “Code itself creates no legal obligations and no legal liabilities” (emphasis added).  The insertion of “itself” suggests the Code was designed to precisely do otherwise in conjunction with something else, like contracting policy revisions.  This is made even more apparent when one considers that the Code mentions “law” an average of four times per page.  See Sections 56 – 62 of the Code for prohibitions related to weapons and ammunition.

[7]  The Code could also be hardened into globally binding international law if it were to become the subject a binding resolution by the United Nations Security Council, but this is not likely at this point.  More likely is that the Code becomes the thrust of a multi-lateral treaty effort or a resolution within UN General Assembly.

[8]  Dr. Andrew Clapham, the Director of the Geneva Academy of International Humanitarian Law and Human Rights, is one such prominent lawyer.  He writes books, teaches courses, and consults to the UN as an expert in “corporate responsibility,” “corporate complicity” and “international obligations of non-state actors under human rights law and under international humanitarian law” according to his faculty profile here.

[9]  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 and reigning in the industry itself.  Its most aggressive proponents seek to ban civilian possession of all small arms and ammunition from civil society.  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 small arms control policy writer for the UN, published a handbook on the UN’s small arms process in 2012 with Marcus Wilson.  This publication is a good starting point for anybody seeking to more fully understand the international small arms control lawmaking process, here.

[10]  The Code in Note 2, Sections 58 parts d) and e) specify companies should implement policies or procedures for “identification and accounting of all ammunition” and its “verifiable and proper disposal.”  The vague references to international and other law also give strength to small arms and ammunition controls embodied in extremely restrictive treaties such as the 2010 Central African Convention for the Control of Small Arms and Light Weapons, their Ammunition and all Parts and Components that can be used for their Manufacture, Repair and Assembly (also known as the Kinshasa Convention).  These references incidentally enable controversially restrictive interpretations on the use of expanding hollow-point ammunition, which is accepted in many domestic law enforcement and hunting contexts but is understood as customarily prohibited in armed conflict contexts.

[11]  The regional 2010 Kinshasa Convention mentioned in Note 9 is an example of a treaty that includes extremely restrictive language that many countries argue must be the end-state for the global ATT.  The Kinshasa Convention is understood by many of its backers to be the ideal regional “as-is” template for a “to-be” globally binding framework restricting small arms and ammunition, achievable through an amended and expanded ATT.  See related article here.

[12]  The United States delegation to the ATT made a clear case for why initiatives for marking and tracing and reporting of ammunition were unfeasible during the February 2012 ATT PrepCom.  This argument was outlined in the US “non-paper” on ammunition, here.  Our 2008 survey of American competitive shooters indicated more than 80% of those using center-fire rifles and pistol ammunition manufactured their own ammunition, which entails individual shooters reloading recycled brass casings with propellant, bullets, and primers, see sporting media mention of this survey here, and .

[13]  This doctrine has come to the forefront within the context for promoting the Arms Trade Treaty.  A March interview with a spokesman of Amnesty International explained the ATT as an essential tool for  legally challenging the foreign policy of states.  See interview here.  Another former representative of Amnesty International, Dr. Andrew Clapham, mentioned in Note 8 above, joined by Sarah Parker of the Small Arms Survey, explained various tools and techniques for engaging in policy lawfare at an October 2012 news conference in Geneva.  See reporting on this of this news event, including audio and pictures, here.

[14]  This quotation is a deliberate reference to the Kinshasa Convention described in Notes 9 and 10.  This convention remains a blue-print for a broad coalition of countries (led by Oslo, Mexico, and Austria) to develop ever more restrictions and prohibitions for industry and global civil society within the transnational lawmaking small arms process.

[15]  The Program of Action, International Small Arms Control Standards (ISACS), and the ATT are distinct but interrelated agenda items on the UN’s small arms control agenda.  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.

[16]  The International Action Network on Small Arms (IANSA), a prominent anti-industry advocacy group working inside the United Nations, is committed to “reducing the availability of weapons to civilians in all societies” according to page 3 of its foundation document here.  The Campaign Against The Arms Trade (CAAT) works with and through many organizations including IANSA to “to end the international arms trade” according to statements on its website here.

 

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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