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). 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. 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.

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. 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.

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. 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.

Second, the Code reinforces controversial aspects of the UN’s transnational lawmaking “small arms process.” 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. 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. 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.

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. 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.” 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.

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. 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.

“The judges were focused on how far can KBR stretch these government contracting defense doctrines to grab immunity for their conduct,” Mike Doyle, the soldiers’ lead attorney, said in an interview after the 75-minute hearing. The judges weren’t “overly receptive” to KBR’s claim of “blanket immunity,” Doyle said.

Lawyers for injured soldiers urged the three-judge panel to reject KBR’s theory that the Houston-based company (KBR:US) is immune from the lawsuits. The plaintiffs, 125 national guardsmen from Indiana and West Virginia, as well as 13 members of Britain’s Royal Air Force, accuse the company of exposing them to toxic chromium compounds in Iraq in 2003.

Wartime Decisions

“We had an excellent opportunity to get our points across to the panel today, that this is a case that should never go to trial,” Lawrence Ebner, KBR’s appellate attorney, said in an interview after the hearing. Any lawsuit requiring an examination of U.S. wartime decisions, “as this one would, is barred” by the military-contracting defenses, he said.

A trial court judge in Houston found the company’s conduct can be judged separately from the actions of the U.S. Army and allowed the case to proceed to trial. KBR appealed that decision two weeks before jury selection was scheduled to begin.

U.S. Circuit Judge Carolyn Dineen King pressed lawyers at today’s hearing on the exact meaning of the political question doctrine and whether it applies to cases in which the trial judge has already ruled the Army can’t be held responsible. That doctrine bars courts from passing judgment on decisions by the executive branch, of which the military is an extension. The combatant activities exemption blocks litigation over injuries suffered in active war zones.

“It isn’t the fact of what the government did -- the raw fact -- it’s a question of re-evaluating the wisdom of it and the reasons for it” that are prohibited under the statute, King told the lawyers, according to a transcript of the proceeding.

“This case would simply be impossible to try without examining military judgments,” Ebner replied.

Congress didn’t intend for military contractors to use “court-made doctrines” as a means to “slam the courthouse door in the face of Americans” supporting the war effort overseas, University of Baltimore law professor Charles Tiefer said in a phone interview before today’s hearing.

‘Judicial Backlash’

“KBR has been straining these defenses way too much,” said Tiefer, an expert on defense contractors who served three years on the U.S. Commission on Wartime Contracting. “There seems to be some judicial backlash which might bring KBR to account on some of these matters.”

KBR’s lawyers have said the stakes in the Texas case are high, as it presents the clearest picture yet of how the military-contracting statutes should be interpreted.

The laws were designed “to eliminate courts from the battlefield,” Mark Lowes, KBR’s litigation vice president, said in an interview before the hearing.

“All contractors, not just KBR, are in the business of controlling risk,” Lowes said. “Next time, there may be no one there to support the Army because there’s no way to evaluate the risk.”

Still Working

Military contractors are unlikely to stop pursuing work with the army if KBR is found liable for injuries to the troops, Tiefer said.

“Trucking companies have to pay damages in trials, but I continue to see trucks on the highway,” he said. “War zone contracts have been very lucrative. There’s no sign companies won’t eagerly compete to get those contracts.”

Geoff Harrison, one of KBR’s lead attorneys, said a ruling against the company could undermine military discipline with “potentially disastrous” consequences during wartime.

“If civilian defense contractors like KBR are exposed to post-combat, after-the-fact U.S. tort liability, based on their work in a war zone under the direction of the U.S. military in wartime on foreign soil, then contractors will be forced to second-guess U.S. military decisions and instructions, and be forced to pick and choose what orders to follow and not to follow,” Harrison said in an interview.

Burn Pits

From 2006 through this year, judges largely agreed with KBR’s interpretation of the law and threw out death and injury cases involving dozens of workers and soldiers (KBR:US). Those included suits over convoy drivers killed or injured outside of Baghdad and by soldiers claiming they were harmed by toxic smoke from company burn pits in Iraq.

In November, an Oregon federal jury -- the first to hear claims tied to the company’s work in Iraq -- awarded $85 million to 12 soldiers who claimed they were poisoned by chromium dust while guarding a company work site in 2003. Most of the award was for punitive damages, and KBR appealed the verdict.

Last month, the U.S. Court of Appeals in Philadelphia ordered KBR to stand trial over allegations that shoddy workmanship caused a soldier in Iraq to be electrocuted. Days later, a federal judge in Houston ordered KBR to face trial in April on human-trafficking claims involving foreign workers in Iraq.

‘False Starts’

“Our defenses are right, but being right on the law and the facts don’t mean you get the right result,” Lowes said. “We can expect some false starts from courts as they struggle through what to do.”

The soldiers in the case that was argued in El Paso today contend their injuries resulted from KBR’s failure to warn them of widespread toxic contamination at the Qarmat Ali water-treatment plant and weren’t caused by Army decisions.

KBR was hired to rehabilitate Iraq’s oil-production facilities after the U.S.-led invasion in 2003. The soldiers were assigned to protect KBR at Qarmat Ali.

Company officials (KBR:US) noted yellow sodium-dichromate dust, a carcinogen used to inhibit corrosion, blowing about the site shortly after their arrival in May 2003, according to documents produced in the case. The plaintiffs alleged that chromium dust exposure can cause skin, eye and lung irritations and lead to genetic mutations that trigger immune disorders and cancer.

“KBR had numerous opportunities to inform the U.S. Army Corps of Engineers and onsite personnel of the danger,” David Gunn, a lawyer for the soldiers, said in a court filing.

Complaints Dismissed

Health complaints at Qarmat Ali were routinely dismissed by company officials as “nothing” or as expected complications of working in a harsh desert climate, the soldiers said in court filings. Only after KBR managers arrived at the site wearing chemical protective suits and respirators in August 2003 did the soldiers say they learned the truth, according to their lawyers.

“The delay occurred because KBR did not fully comply with occupational safety and health standards required by the contract,” Gunn said, quoting from the 2011 Defense Department Inspector General’s report into the incident.

“KBR’s contract said to check out the site, and if there was any danger, to shut it down,” Doyle said in an interview. The company continued the work to meet project deadlines and win performance bonuses, he said.

KBR contends it followed both Army orders and the terms of its contract (KBR:US). The company has said it promptly and properly alerted soldiers to the dangers at Qarmat Ali, and it disputes that soldiers were harmed by their exposure to the sodium-dichromate dust, which in some places formed drifts four feet thick, according to court filings.

Health Studies

“None of the soldiers was injured or sickened in any way” by their alleged exposure in Iraq, Harrison said. He said contemporaneous health studies by the U.S. and U.K. military disprove claims of physical injuries to the troops.

Lowes said KBR believes its contractor-on-the-battlefield defenses will ultimately prevail, even if the company has to carry the fight to the U.S. Supreme Court.

“We support the soldiers,” Lowes said. “We support the national goals and activities of our duly elected U.S. government. How can that be anything but patriotic?”

The case is McManaway v. KBR Inc. , 12-20763, U.S. Court of Appeals for the Fifth Circuit (New Orleans).

To contact the reporters on this story: Laurel Brubaker Calkins in Houston at [email protected]; Margaret Cronin Fisk in Detroit at [email protected]