The Obama Administration signaled tentative plans to support a new plan 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.
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 plan to all federal procurement agencies or encouraging 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). 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.
