The OSCE Code Of Conduct On Politico-Military Aspects Of Security: Anatomy And Implementation (Graduate Institute o Internations Studies, 5)

A regime for the democratic control of armed forces exists in the OSCE area (which stretches from Vancouver to Vladivostok) through a "Code of Conduct on Politico-Military Aspects of Security" (1994). This instrument, which links civil-military relations to human rights and international humanitarian law, has no counterpart in other security organizations. Intruding into an area of state power hitherto considered a sanctum sanctorum, it commits the OSCE member states to a regular exchange of information on the status of the democratic control of their armed forces, as well as on such issues as the fight against terrorism and the stationing of troops on foreign soil. The book represents an urgently needed reference work on both the contents and the impact of the Code; drawing on as-yet unpublished materials, it offers a paragraph-by-paragraph commentary on the Code, as well as an in-depth assessment of implementation trends in the OSCE region. Table of Contents List of Abbreviations Foreword to Part I by Ambassador Ján Kubiš, Secretary General of the OSCE Foreword to Part II by Ambassador Lamberto Zannier, Director, OSCE Conflict Prevention Centre General Introduction PART I – Paragraph-by-Paragraph Commentary on the Code of Conduct (Vincent Ghebali) Title: "Code of Conduct on Politico-Military Aspects of Security" Preamble - 1st paragraph: Parties to the Code of Conduct - 2nd paragraph: The Code of Conduct's rationale - 3rd paragraph: Undiminished status of existing international law principles - 4th paragraph: Undiminished status of existing OSCE commitments - 5th paragraph: Adoption of the Code of Conduct Section I. Reaffirmation of comprehensive security and cooperative security, and enunciation of the solidarity principle - Paragraph 1: Wholesale confirmation of OSCE commitments - Paragraph 2: Reaffirmation of the comprehensive security concept - Paragraph 3: Reaffirmation of the indivisibility of security in the OSCE area and beyond - Paragraph 4: Reaffirmation of the cooperative security approach - Paragraph 5: Enunciation of the solidarity principle Section II. Reaffirmation of the commitment to cooperate against terrorism - Paragraph 6: Reaffirmation of the commitment to take appropriate measures to prevent and combat terrorism in all its forms Section III. Reaffirmation of the equal value of the Helsinki Final Act's principles and of the commitment of non-assistance to aggressor states - Paragraph 7: Reaffirmation of the equal value of the Helsinki Final Act's Principles - Paragraph 8: Reaffirmation of the commitment of non-assistance or support to an aggressor state Section IV. Security Rights and obligations of OSCE participating states - Paragraph 9: Reaffirmation of the right to self-defence - Paragraph 10: Reaffirmation of the right to freely choose security arrangements - Paragraph 11: Reaffirmation of the right to belong to alliances and the right to neutrality - Paragraph 12: Obligation to maintain only such military capabilities commensurate with individual or collective security needs - Paragraph 13: Obligation to determine military capabilities through national democratic procedures. Renunciation of military domination in the OSCE area - Paragraph 14: Authorisation to station armed forces on the territory of another participating state in accordance with freely negotiated agreements as well as international law Section V. Importance of the process of arms control, disarmament and CSBM - Paragraph 15: Importance of implementation in good faith of arms control, disarmament and CSBM commitments - Paragraph 16: Reaffirmation of the commitment to pursue arms control, disarmament and CSBM measures in the OSCE area Section VI. Reaffirmation of commitments to cooperate for conflict prevention and crisis management - Paragraph 17: Cooperation to counter economic/environmental and human dimension tensions conducive to conflicts - Paragraph 18: Reaffirmation of the equal importance of cooperation at the various phases of the conflict management cycle - Paragraph 19: Cooperation for peaceful resolution and humanitarian assistance support in armed conflicts Section VII. Democratic control of armed forces - Paragraph 20: Rationale for the democratic control of armed forces - Paragraph 21: Primacy of the constitutionally established authorities vested with democratic legitimacy over military power - Paragraph 22: Legislative approval of, as well as restraint in, transparency of and public access to military defence expenditures - Paragraph 23: Political neutrality of armed forces and civil rights of their individual members - Paragraph 24: Safeguards against military incidents due to accident or error - Paragraph 25: Inadmissibility of forces that are not accountable to or controlled by their constitutionally established authorities - Paragraph 26: Prohibition of acquisition by paramilitary forces of combat mission capabilities in excess of those for which they were established - Paragraph 27: Consistency with human rights of recruitment or call-up of armed (military, paramilitary and security) forces - Paragraph 28: Rights and duties of armed forces personnel, including possibility of exemption from or alternatives to military service - Paragraph 29: Promotion of the knowledge of international humanitarian law and reflection of its commitments in military training programmes and regulations - Paragraph 30: Instruction of armed forces personnel in international humanitarian law, including awareness of individual accountability at domestic and international level - Paragraph 31: Individual accountability of commanders and rank and file servicemen of armed forces under national and international law - Paragraph 32: Exercise of their human rights by the personnel of military, paramilitary and security forces - Paragraph 33: Legal and administrative national procedures for the protection of the rights of all forces personnel Section VIII. Democratic use of armed forces - Paragraph 34: Consistency of the commandment, manning, training and equipment of armed forces with international humanitarian law - Paragraph 35: Consistency of defence policy and doctrine with international humanitarian law and the Code of Conduct - Paragraph 36: Subjection of the domestic use of force to the rule of law and commensurability of such use with the needs for enforcement - Paragraph 37: Prohibition of a domestic use of force aimed at restricting the peaceful and lawful exercise of human and civil rights or at depriving people of their individual or collective identity Section IX. Implementation arrangements - Paragraph 38: Accountability for implementation Section X. Final clauses - Paragraph 39: Politically binding nature of the Code and date of its coming into force - Paragraph 40: Undiminished value of existing OSCE commitments - Paragraph 41: Reflection of the Code's commitments in relevant national internal documents, procedures or legal instruments - Paragraph 42: Publication and widespread dissemination of the Code at national level Bibliography Annexes to Part I - Annex 1: Proposal submitted by Hungary and the United states, at the Moscow Conference on the human dimension, concerning "Civilian control over military and security forces" (CSCE/CHDM/.43 of 26 September 1991) - Annex 2: Proposal submitted by France, Germany and other participating states, at the 1992 Helsinki Follow-up Meeting, concerning a "CSCE Code of Conduct on security relationships among participating states" (CSCE/HM/WG2/1 of 19 May 1992) - Annex 3: Proposal submitted by Poland on a "CSCE Code of Conduct in the field of security" (CSCE/FSC/SC.5/Rev.1 of 18 November 1992) - Annex 4: Proposal submitted by the member states of the European Community, Iceland and Norway on a "CSCE Code of Conduct governing mutual relations between participating states in the field of security" CSCE/ FSC/SC.21 of 30 June 1993) - Annex 5: Proposal submitted by Austria and Hungary on a "CSCE Code of Conduct governing the behaviour of the participating states towards each other and of governments towards their citizens" (CSCE/FSC/SC.22 of 15 September 1993) - Annex 6: Proposal submitted by Turkey on a "Code of Conduct governing the mutual relations of the CSCE participating states in the field of security" (CSCE/FSC/SC.8 of 16 December 1992) - Annex 7: Proposal on implementation provisions for a Code of Conduct" (CSCE/FSC/SC.17 of 5 May 1993) - Annex 8: Proposal submitted by Hungary on the "democratic control of the armed forces and their use" (CSCE/FSC/SC.25 of 23 February 1994) - Annex 9: Working document submitted by France regarding the structure of a Code of Conduct (CSCE/FSC/SC/B.2 of 3 June 1993) - Annex 10: United Nations "Code of Conduct for Law Enforcement Officials", adopted by the United Nations General Assembly (Resolution 34/169 of 17 December 1979) - Annex 11: Declaration on the Police adopted by the Parliamentary Assembly of the Council of Europe (Resolution 690 of 8 May 1979) - Annex 12: Recommendation on "Control of internal security services in Council of Europe member states" adopted by the Parliamentary Assembly of the Council of Europe (Recommendation 1402 of 26 April 1999) PART II – Assessment of Implementation Trends of the Code of Conduct (Alexander Lambert) Introductory Remarks 1. Assessment Framework 1.1 The Concept of 'Armed Forces' 1.1.1 The Code and the Security Sector 1.1.2 Military, Paramilitary and Security Forces 1.1.3 Terminology Used in Sections VII-VIII 1.2 The Code and the Euro-Atlantic Enlargement Process 1.2.1 EU Criteria for Democracy 1.2.2 NATO and the Partnership for Peace Programme 1.2.3 Sub-Regional Dimensions of the Information Exchange 1.3 The Connection between the Code of Conduct and the 1998 Questionnaire 1.3.1 The Elements of the Code Reflected in the Questionnaire 1.3.2 The Ratio between Inter- and Intra-state Elements 1.4 The Questionnaire Viewed from a Thematic Perspective 1.4.1 Overlaps Between Individual Items of the Questionnaire 1.4.2 Outline for the Evaluation of the Information Exchange 2. Thematic Analysis of the Information Exchange 2.1 Primacy of Democratic Constitutional Civilian Power over Military Power 2.1.1 National Planning and Decision-Making Process for the Determination of the Military Posture 2.1.1.1 General Information on the Relation between the Executive and Legislative Branches of government 2.1.1.2 Roles of Parliament and the Broader Public 2.1.1.3 The Ministry of Defence and Civilian Leadership 2.1.1.4 NATO Enlargement and National Defence Decision-Making 2.1.1.5 Systems of Presidential-Executive Decision-Making in Central and Eastern Europe 2.1.2 Public Access to Information Related to the Armed Forces 2.1.2.1 Transparency and Publicity of the Defence Budget 2.1.2.2 Special Legislation Related to Public and Restricted Access to Information 2.1.2.3 Ministerial Information Policies 2.1.3 Constitutionally Established Authorities and Procedures to Ensure the Democratic Political Control of the Security Sector 2.1.3.1 General Information on the 'Armed Forces' 2.1.3.2 Specific Information on Paramilitary and Internal Security Forces 2.1.3.3 Intelligence Services 2.1.3.4 Police and Police Reform 2.1.4 Roles and Missions of Military, Paramilitary and Security Forces 2.1.4.1 Regular Military Forces 2.1.4.2 Paramilitary and Security Forces 2.2 Subjection of the Armed Forces to the Norms and Prescriptions of International Humanitarian Law (IHL) 2.2.1 Respect of IHL in Peacetime and Wartime 2.2.2 Promotion of Knowledge on IHL 2.3 Respect of the Human Rights and Fundamental Freedoms of the Armed Forces Personnel 2.3.1 Recruitment and Call-up for Service in Military, Paramilitary and Security Forces 2.3.1.1 General Trend Toward Professionalism 2.3.1.2 Recruitment, Call-up and Human Rights 2.3.1.3 Special Information on Paramilitary and Security Forces 2.3.2 Exemptions from and Alternatives to Compulsory Military Service 2.3.2.1 Conscientious Objection 2.3.2.2 Exemptions from Compulsory Military Service 2.3.2.3 Alternative Civilian Service 2.3.3 Protection of the Rights of Forces Personnel 2.3.3.1 Civilian and Military Court Systems 2.3.3.2 Restrictions in the Field of Civic Rights and Political Freedoms 2.3.3.3 Procedures and Institutions Ensuring the Exercise of the Personnel's Individual Rights 2.4 Inter-state Aspects of the Information Exchange 2.4.1 Combat and Prevention of Terrorism 2.4.1.1 Global Arrangements 2.4.1.2 Regional Arrangements 2.4.1.3 Bilateral Arrangements 2.4.1.4 Implementation of International Commitments on the Domestic Level 2.4.2 Stationing of Armed Forces on Foreign Territory 2.4.2.1 International Peacekeeping 2.4.2.2 Regional Arrangements 2.4.2.3 Domestic Decision-Making Process 3 The Code's Regime Evaluation 3.1 The Substance of the Information Exchange 3.1.1 Supremacy of Democratic Constitutional Civilian Power over Military Power 3.1.2 Subjection of the Armed Forces to the Norms and Prescriptions of IHL 3.1.3 Respect of the Human Rights and Fundamental Freedoms of the Armed Forces Personnel 3.1.4 Inter-state Elements of the Information Exchange 3.2 The Reporting Technique 3.2.1 The Updated 2003 Questionnaire 3.2.2 Enhancing Effectiveness, Transparency and Efficiency of the Reporting 3.2.3 Contributing to Best Practices of democratic control of armed forces 3.3 The Way Ahead 3.4 The 2003 and 2004 Information Exchange Bibliography Annexes to Part II - Annex 1: Redistribution of tasks and responsibilities of the national authorities in defence planning decision-making and the determination of the military posture in an EU and NATO candidate country - Annex 2: Roles and responsibilities of national authorities in defence decision-making and the determination of the military posture in some of the CIS countries - Annex 3: Competencies and Responsibilities of National Authorities in a newly-admitted NATO member country - Annex 4: Competencies and responsibilities of national authorities in the field of democratic control of the armed force in some of the established democracies, as well as some of the NATO/EU candidate countries of East-Central Europe - Annex 5: Civilian control exercised through presidential, parliamentary and judicial control in two Caucasus countries - Annex 6: Officer and Conscript Training and Education in IHL in one established democracy and EU member state - Annex 7: The Updated Questionnaire 2003 Index to Part I Index to Part II "A regime for the democratic control of armed forces exists in the OSCE area (which stretches from Vancouver to Vladivostok) through a "Code of Conduct on Politico-Military Aspects of Security' (1994)." "The book represents an urgently needed reference work on both the contents and the impact of the Code; drawing on as-yet unpublished materials, it offers a paragraph-by-paragraph commentary on the Code, as well as an in-depth assessment of implementation trends in the OSCE region."--BOOK JACKET