The OSCE Code Of Conduct On Politico-Military Aspects Of Security: Anatomy And Implementation...

THE OSCE CODE OF CONDUCT ON POLITICO-

MILITARY ASPECTS OF SECURITY

Anatomy and Implementation

The Graduate Institute of International StudiesVolume 5

The titles published in this series are listed at the end of this volume.

THE OSCE CODE OF CONDUCTON POLITICO-MILITARYASPECTS OF SECURITY

Anatomy and Implementation

by

Victor-Yves Ghebali and Alexander Lambert

MARTINUS NIJHOFF PUBLISHERSLEIDEN / BOSTON

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ACKNOWLEDGMENTS

The OSCE Code of Conduct on Politico-Military Aspects of Securityoccupies a fundamental place among the body of commitments developed withinthe politico-military dimension of the OSCE. The Code addresses an area ofstate power which has hitherto been considered a sanctum sanctorum – thearmed forces and the security sector at large, which it subjects to the principlesand rules of democratic governance. As such, it has no real counterpart in aglobal or regional security organization. Although the Code is far from tech-nically and substantially perfect, it has proven to be a vital instrument, whichis being used as a reference tool by European and Euro-Atlantic organizationsother than the OSCE. Against this background, the Geneva Centre for theDemocratic Control of Armed Forces (DCAF) commissioned the OSCE Clusterof Competence at the Graduate Institute for International Studies, Geneva, tocarry out a research project on the Code, including a paragraph-by-paragraphcommentary on the politically binding document, as well as an assessment ofthe Code’s implementation based on an analysis of the established proceduresof information exchange. The project which was pursued in close collaborationwith a number of experts at DCAF resulted in the publication of this volume.We would like to express our deep gratitude to DCAF both for its financialand intellectual support as well as its continued efforts in promoting the prin-ciples of the Code in the Euro-Atlantic region and beyond.

Victor-Yves Ghebali and Alexander Lambert

TABLE OF CONTENTS

List of Abbreviations xv

Foreword to Part I by Ambassador Ján Kubiš, Secretary General of the OSCE xvii

Foreword to Part II by Ambassador Lamberto Zannier, Director, OSCEConflict Prevention Centre xix

General Introduction 1

PART I – Paragraph-by-Paragraph Commentary on the Code of Conduct 17Vincent Ghebali

Title: “Code of Conduct on Politico-Military Aspects of Security” 19Preamble 20- 1st paragraph: Parties to the Code of Conduct 22- 2nd paragraph: The Code of Conduct’s rationale 22- 3rd paragraph: Undiminished status of existing international law

principles 24- 4th paragraph: Undiminished status of existing OSCE commitments 24- 5th paragraph: Adoption of the Code of Conduct 25

Section I. Reaffirmation of comprehensive security and cooperativesecurity, and enunciation of the solidarity principle 26

- Paragraph 1: Wholesale confirmation of OSCE commitments 27- Paragraph 2: Reaffirmation of the comprehensive security concept 28- Paragraph 3: Reaffirmation of the indivisibility of security in the OSCE area and

beyond 28- Paragraph 4: Reaffirmation of the cooperative security approach 30- Paragraph 5: Enunciation of the solidarity principle 33

viii THE OSCE CODE OF CONDUCT ON POLITICO-MILITARY ASPECTS OF SECURITY

Section II. Reaffirmation of the commitment to cooperate against terrorism 36- Paragraph 6: Reaffirmation of the commitment to take appropriate measures to prevent

and combat terrorism in all its forms 37

Section III. Reaffirmation of the equal value of the Helsinki Final Act’sprinciples and of the commitment of non-assistance to aggressor states 39

- Paragraph 7: Reaffirmation of the equal value of the Helsinki Final Act’s Principles 40- Paragraph 8: Reaffirmation of the commitment of non-assistance or support to an

aggressor state 40

Section IV. Security Rights and obligations of OSCE participating states 41- Paragraph 9: Reaffirmation of the right to self-defence 42- Paragraph 10: Reaffirmation of the right to freely choose security arrangements 42- Paragraph 11: Reaffirmation of the right to belong to alliances and the right to

neutrality 43- Paragraph 12: Obligation to maintain only such military capabilities commensurate

with individual or collective security needs 45- Paragraph 13: Obligation to determine military capabilities through national

democratic procedures. Renunciation of military domination in the OSCE area 47- Paragraph 14: Authorisation to station armed forces on the territory of another

participating state in accordance with freely negotiated agreements as well as inter-national law 48

Section V. Importance of the process of arms control, disarmamentand CSBM 51- Paragraph 15: Importance of implementation in good faith of arms control,

disarmament and CSBM commitments 52- Paragraph 16: Reaffirmation of the commitment to pursue arms control, disarmament

and CSBM measures in the OSCE area 53

Section VI. Reaffirmation of commitments to cooperate for conflictprevention and crisis management 54- Paragraph 17: Cooperation to counter economic/environmental and human dimension

tensions conducive to conflicts 55- Paragraph 18: Reaffirmation of the equal importance of cooperation at the various

phases of the conflict management cycle 56- Paragraph 19: Cooperation for peaceful resolution and humanitarian assistance support

in armed conflicts 57

Section VII. Democratic control of armed forces 58- Paragraph 20: Rationale for the democratic control of armed forces 60- Paragraph 21: Primacy of the constitutionally established authorities vested with

democratic legitimacy over military power 65- Paragraph 22: Legislative approval of, as well as restraint in, transparency of and

public access to military defence expenditures 67

TABLE OF CONTENTS ix

- Paragraph 23: Political neutrality of armed forces and civil rights of theirindividual members 69

- Paragraph 24: Safeguards against military incidents due to accident or error 70- Paragraph 25: Inadmissibility of forces that are not accountable to or controlled by

their constitutionally established authorities 71- Paragraph 26: Prohibition of acquisition by paramilitary forces of combat mission

capabilities in excess of those for which they were established 72- Paragraph 27: Consistency with human rights of recruitment or call-up of armed

(military, paramilitary and security) forces 73- Paragraph 28: Rights and duties of armed forces personnel, including possibility of

exemption from or alternatives to military service 74- Paragraph 29: Promotion of the knowledge of international humanitarian law and

reflection of its commitments in military training programmes and regulations 77- Paragraph 30: Instruction of armed forces personnel in international humanitarian

law, including awareness of individual accountability at domestic and internationallevel 79

- Paragraph 31: Individual accountability of commanders and rank and file servicemen ofarmed forces under national and international law 80

- Paragraph 32: Exercise of their human rights by the personnel of military, paramilitaryand security forces 82

- Paragraph 33: Legal and administrative national procedures for the protection of therights of all forces personnel 83

Section VIII. Democratic use of armed forces 83- Paragraph 34: Consistency of the commandment, manning, training and equipment

of armed forces with international humanitarian law 84- Paragraph 35: Consistency of defence policy and doctrine with international

humanitarian law and the Code of Conduct 85- Paragraph 36: Subjection of the domestic use of force to the rule of law and

commensurability of such use with the needs for enforcement 87- 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 individualor collective identity 92

Section IX. Implementation arrangements 94- Paragraph 38: Accountability for implementation 94

Section X. Final clauses 103- Paragraph 39: Politically binding nature of the Code and date of its coming into force 103- Paragraph 40: Undiminished value of existing OSCE commitments 105- Paragraph 41: Reflection of the Code’s commitments in relevant national internal

documents, procedures or legal instruments 106- Paragraph 42: Publication and widespread dissemination of the Code at national level 106

Bibliography 109

x THE OSCE CODE OF CONDUCT ON POLITICO-MILITARY ASPECTS OF SECURITY

Annexes to Part I 117- Annex 1: Proposal submitted by Hungary and the United states, at the

Moscow Conference on the human dimension, concerning “Civiliancontrol over military and security forces” (CSCE/CHDM/.43 of26 September 1991) 117

- Annex 2: Proposal submitted by France, Germany and otherparticipating states, at the 1992 Helsinki Follow-up Meeting, concerninga “CSCE Code of Conduct on security relationships among participatingstates” (CSCE/HM/WG2/1 of 19 May 1992) 118

- Annex 3: Proposal submitted by Poland on a “CSCE Code of Conductin the field of security” (CSCE/FSC/SC.5/Rev.1 of 18 November 1992) 119

- Annex 4: Proposal submitted by the member states of the EuropeanCommunity, Iceland and Norway on a “CSCE Code of Conduct governingmutual relations between participating states in the field of security” CSCE/FSC/SC.21 of 30 June 1993) 129

- Annex 5: Proposal submitted by Austria and Hungary on a “CSCECode of Conduct governing the behaviour of the participating states towardseach other and of governments towards their citizens” (CSCE/FSC/SC.22 of15 September 1993) 140

- Annex 6: Proposal submitted by Turkey on a “Code of Conductgoverning the mutual relations of the CSCE participating states in the field ofsecurity“ (CSCE/FSC/SC.8 of 16 December 1992) 154

- Annex 7: Proposal on implementation provisions for a Code ofConduct” (CSCE/FSC/SC.17 of 5 May 1993) 160

- Annex 8: Proposal submitted by Hungary on the “democratic control ofthe armed forces and their use” (CSCE/FSC/SC.25 of 23 February 1994) 162

- Annex 9: Working document submitted by France regarding thestructure of a Code of Conduct (CSCE/FSC/SC/B.2 of 3 June 1993) 166

- Annex 10: United Nations “Code of Conduct for Law EnforcementOfficials”, adopted by the United Nations General Assembly (Resolution34/169 of 17 December 1979) 168

- Annex 11: Declaration on the Police adopted by the ParliamentaryAssembly of the Council of Europe (Resolution 690 of 8 May 1979) 173

- Annex 12: Recommendation on “Control of internal security services inCouncil of Europe member states” adopted by the Parliamentary Assemblyof the Council of Europe (Recommendation 1402 of 26 April 1999) 177

TABLE OF CONTENTS xi

PART II – Assessment of Implementation Trends of the Code of ConductAlexander Lambert 181

Introductory Remarks 185

1. Assessment Framework 187

1.1 The Concept of ‘Armed Forces’ 1881.1.1 The Code and the Security Sector 1881.1.2 Military, Paramilitary and Security Forces 1891.1.3 Terminology Used in Sections VII-VIII 192

1.2 The Code and the Euro-Atlantic Enlargement Process 1941.2.1 EU Criteria for Democracy 1941.2.2 NATO and the Partnership for Peace Programme 1961.2.3 Sub-Regional Dimensions of the Information Exchange 203

1.3 The Connection between the Code of Conduct and the 1998 Questionnaire 2041.3.1 The Elements of the Code Reflected in the Questionnaire 2041.3.2 The Ratio between Inter- and Intra-state Elements 208

1.4 The Questionnaire Viewed from a Thematic Perspective 2101.4.1 Overlaps Between Individual Items of the Questionnaire 2101.4.2 Outline for the Evaluation of the Information Exchange 214

2. Thematic Analysis of the Information Exchange 219

2.1 Primacy of Democratic Constitutional Civilian Power over Military Power 2202.1.1 National Planning and Decision-Making Process for the

Determination of the Military Posture 2222.1.1.1 General Information on the Relation between the

Executive and Legislative Branches of government 2232.1.1.2 Roles of Parliament and the Broader Public 2252.1.1.3 The Ministry of Defence and Civilian Leadership 2272.1.1.4 NATO Enlargement and National Defence Decision-

Making 2282.1.1.5 Systems of Presidential-Executive Decision-Making in

Central and Eastern Europe 2342.1.2 Public Access to Information Related to the Armed Forces 2352.1.2.1 Transparency and Publicity of the Defence Budget 2362.1.2.2 Special Legislation Related to Public and Restricted

Access to Information 2372.1.2.3 Ministerial Information Policies 238

xii THE OSCE CODE OF CONDUCT ON POLITICO-MILITARY ASPECTS OF SECURITY

2.1.3 Constitutionally Established Authorities and Procedures toEnsure the Democratic Political Control of the SecuritySector 242

2.1.3.1 General Information on the ‘Armed Forces’ 2432.1.3.2 Specific Information on Paramilitary and Internal Security

Forces 2502.1.3.3 Intelligence Services 2542.1.3.4 Police and Police Reform 2622.1.4 Roles and Missions of Military, Paramilitary and Security

Forces 2672.1.4.1 Regular Military Forces 2682.1.4.2 Paramilitary and Security Forces 275

2.2 Subjection of the Armed Forces to the Norms and Prescriptions ofInternational Humanitarian Law (IHL) 2812.2.1 Respect of IHL in Peacetime and Wartime 2832.2.2 Promotion of Knowledge on IHL 285

2.3 Respect of the Human Rights and Fundamental Freedoms of the ArmedForces Personnel 2872.3.1 Recruitment and Call-up for Service in Military,

Paramilitary and Security Forces 2892.3.1.1 General Trend Toward Professionalism 2902.3.1.2 Recruitment, Call-up and Human Rights 2912.3.1.3 Special Information on Paramilitary and Security Forces 2922.3.2 Exemptions from and Alternatives to Compulsory Military

Service 2932.3.2.1 Conscientious Objection 2932.3.2.2 Exemptions from Compulsory Military Service 2952.3.2.3 Alternative Civilian Service 2972.3.3 Protection of the Rights of Forces Personnel 3002.3.3.1 Civilian and Military Court Systems 3012.3.3.2 Restrictions in the Field of Civic Rights and Political

Freedoms 3032.3.3.3 Procedures and Institutions Ensuring the Exercise of the

Personnel’s Individual Rights 305

2.4 Inter-state Aspects of the Information Exchange 3112.4.1 Combat and Prevention of Terrorism 3112.4.1.1 Global Arrangements 3122.4.1.2 Regional Arrangements 3142.4.1.3 Bilateral Arrangements 316

TABLE OF CONTENTS xiii

2.4.1.4 Implementation of International Commitments on theDomestic Level 317

2.4.2 Stationing of Armed Forces on Foreign Territory 3222.4.2.1 International Peacekeeping 3242.4.2.2 Regional Arrangements 3252.4.2.3 Domestic Decision-Making Process 326

3 The Code’s Regime Evaluation 329

3.1 The Substance of the Information Exchange 3303.1.1 Supremacy of Democratic Constitutional Civilian Power

over Military Power 3303.1.2 Subjection of the Armed Forces to the Norms and

Prescriptions of IHL 3423.1.3 Respect of the Human Rights and Fundamental Freedoms

of the Armed Forces Personnel 3443.1.4 Inter-state Elements of the Information Exchange 351

3.2 The Reporting Technique 3583.2.1 The Updated 2003 Questionnaire 3593.2.2 Enhancing Effectiveness, Transparency and Efficiency of

the Reporting 3653.2.3 Contributing to Best Practices of democratic control of

armed forces 368

3.3 The Way Ahead 3703.4 The 2003 and 2004 Information Exchange 374

Bibliography 379

Annexes to Part II 381

- Annex 1: Redistribution of tasks and responsibilities of the nationalauthorities in defence planning decision-making and the determination ofthe military posture in an EU and NATO candidate country 381

- Annex 2: Roles and responsibilities of national authorities in defencedecision-making and the determination of the military posture in some ofthe CIS countries 383

- Annex 3: Competencies and Responsibilities of National Authorities in anewly-admitted NATO member country 387

xiv THE OSCE CODE OF CONDUCT ON POLITICO-MILITARY ASPECTS OF SECURITY

- Annex 4: Competencies and responsibilities of national authorities in thefield of democratic control of the armed force in some of the establisheddemocracies, as well as some of the NATO/EU candidate countries ofEast-Central Europe 390

- Annex 5: Civilian control exercised through presidential, parliamentaryand judicial control in two Caucasus countries 392

- Annex 6: Officer and Conscript Training and Education in IHL in oneestablished democracy and EU member state 394

- Annex 7: The Updated Questionnaire 2003 396

Index to Part I 399Index to Part II 415

LIST OF ABBREVIATIONS

AIAM Annual Implementation Assessment Meeting(s)BWC Biological Weapons ConventionCFE Conventional Armed Forces in EuropeCFSP Common Foreign and Security PolicyCIMIC Civil-Military CooperationCIOR Inter-allied Confederation of Reserve OfficersCIS Commonwealth of Independent StatesCPC Conflict Prevention CentreCSBM Confidence- and Security-Building MeasureCSCE Conference on Security and Cooperation in EuropeDCAF Democratic Control of Armed ForcesDPB Defence Planning, Budgeting and Resource ManagementECCO European Council of Conscripts OrganisationECHR European Convention on Human RightsEAPC Euro-Atlantic Partnership CouncilEU European UnionFATF Financial Action Task ForceFSC Forum for Security CooperationIHL International Humanitarian LawIPU Inter-Parliamentary UnionLOAC Law of Armed ConflictMAP Membership Action PlanMoD Ministry of DefenceNATO North Atlantic Treaty OrganizationODIHR Office for Democratic Institutions and Human RightsOSCE Organisation for Security and Cooperation in EuropePfP Partnership for PeaceSALW Small Arms and Light WeaponsSOFA Status of Forces AgreementUN United Nations

xvi LIST OF ABBREVIATIONS

UNGA United Nations General AssemblyUNESCO United Nations Educational, Scientific and Cultural

OrganisationUNMIK United Nations Interim Mission in KosovoUNSC United Nations Security CouncilWEU West European Union

FOREWORD TO PART I

The beginning of the 1990s brought the end of the “Cold War” and launcheda new era of stability and prosperity in Europe. The changes in the politicalenvironment opened up the new and enhanced opportunities for common effortsin the field of politico-military security. The OSCE Code of Conduct on Poli-tico-Military Aspects of Security, which will celebrate its tenth anniversary in2004-2005, occupies a special place in this field.

Like many other OSCE documents, the Code of Conduct not only confirmedthe irreversible nature of the breakthrough in ideological, political and militaryconfrontation, but also, more importantly, expressed the strong aspiration ofEuropean countries formerly belonging to “the socialist camp” to cast off thefetters of the past and become full-fledged members of the international com-munity. It was based on the assumption that, in an era no longer determinedby relations between two hostile alliances, there is no reason to apply differentcommitments to various states in Europe.

The Code basically stipulates what was agreed and already adhered to inestablished democracies. For the newly independent Central and Eastern Euro-pean states, it serves as a compass or guideline for reforming their securitysectors in compliance with appropriate democratic norms, principles and proced-ures. Armed forces, police and security forces are an integral part of a societyand, at the same time, remain important players in many countries. For them,the acceptance and implementation of the principles of democratic control ofarmed forces have reflected various aspects within the transformation of theircivil-military relations. Providing democratic control and parliamentary oversightwith budgetary approval, subordinating the military to democratically legitimisedcivilian leadership, binding military personnel to the international rule of law,regarding individual serviceman of every rank as a citizen whose dignity andbasic freedoms have to be safeguarded, integrating the military in societythrough enhanced transparency and constant civil-military dialogue, counter-acting terrorism in all its forms – these are only some of the reform measuresreflecting the principle of democratic control of the security sector.

xviii PART I

It is generally accepted that the notion of “democratic control” first of allrefers to the parliamentary oversight of the security sector and the overallsecurity policy-making. Accordingly, relevant responsibility and authority mustbe shared between the legislative and the executive branch of government inorder to implement transparent and effective security policy with regard tomilitary, paramilitary and security forces. Any attempts either to reduce thelevel of transparency or to break the constitutionally established balance withinthe policy-making process would unavoidably lead also to the distortion of basicdemocratic values. In this regard, the Code of Conduct has set unique standardsto be met by both the countries in transition and consolidation of democracy,as well as by the established democracies. Moreover, the OSCE, by initiating,negotiating, and adopting its Code of Conduct even extents the latter’s impactsetting forth standard, which might be of relevance also to other regionalcontexts and international organisations throughout the world.

The paragraph-by-paragraph Commentary on the Code elaborated byProfessor Victor-Yves Ghebali represents an urgently needed and adequatlyprepared practical tool for those involved in the various application aspects ofthe Code (politicians, parliamentarians, scientists, staff planners, Forum forSecurity Cooperation personnel etc.). The quality and soberness of the analyticalwork invested support this view. The commentary is well written, comprehensiveand applicable. The heuristic interpretations are supported by the referencesand the qualitative and quantitative requirements of a pertinent commentaryare fulfilled. It is also an excellent source and reference base for substantiationof the notion of democratic control of armed forces.

Ambassador Ján KubišSectretary General of the OSCE

FOREWORD TO PART II

Since its adoption in December 1994 and its entry into forces on 1 January1995, the OSCE Code of Conduct on Politico-military Aspects of Security hasbeen regarded as a modern tool to guide and support policies aimed at en-hancing stability and preventing conflicts. The political significance of the Codelies in the fact that the OSCE participating States have accepted for the firsttime to base internal regulations for their armed forces on agreed internationalguidelines.

It is a politically binding document, reflecting the nature of all other under-takings composing the large “toolkit” of soft security instruments developedby the community of the CSCE (later, OSCE) states. While not a legally bindingdocument, the Code’s adoption by full consensus leaves no doubt as to itseffectiveness and the seriousness of intent for its implementation.

The first three years of the Code’s implementation (1995-1997) can becharacterised as a period of vigorous activities aimed at embedding its principlesin national legislations. These efforts took place at a time of profound trans-formation processes. Accordingly, the main focus of the OSCE community wason the activities carried out by States in transition. Discussions of these issuesin the OSCE Forum for Security Co-operation (FSC) were underpinned by asignificant exchange of information, which was generally provided spontaneous-ly and transparently.

Eventually, the need to observe and assess these processes by the OSCEcommunity resulted in the OSCE Questionnaire on the implementation of theCode of Conduct, adopted on 8 July 1998. This originated from a suggestionput forward at the First Follow-up Conference on the Code in September 1997.The 1998 Questionnaire’s ten questions cover main areas of the Code. Thedevelopment of the Questionnaire coincides with a shift to a second phase inthe Code’s implementation process. Since then, the participating States haveprovided their information annually in a structured format in order to allowfor comparison and assessment. Furthermore, the information exchanged by

xx PART II

participating States became the subject of regular review in the Forum and itssecond and third follow-up conferences on the Code.

The Questionnaire was then updated twice. First, and in an effort to intensifyactions on preventing and combating terrorism, Question 1 was expanded tocover measures undertaken by States in this regard. Participating States thenfurther modified it with a view to providing concrete and precise informationwithout duplication of other information exchange regimes within the politico-military dimension of the OSCE.

The Questionnaire currently represents one of the major instruments formonitoring the Code’s implementation. Accordingly, the more regularly andprecise the participating States provide their annual responses to the Question-naire, the more complete and comprehensive a picture can be drawn concerningthe status of implementation, and the more effective assistance can be providedwhere it is needed.

Obviously, the almost ten years of the Code’s implementation have hada strong impact on the participating States’ behaviour and contributed to thespread and consolidation of democracy throughout the OSCE region. Moreover,the Code has abundantly proven to be a living document with a significantpotential also for responding to new security risks and challenges, althoughthis potential has not yet been fully exploited. Finally, the Code takes a com-prehensive and cross-dimensional security approach linking the OSCE’s politico-military dimension with the human dimension of security.

The analyis of Mr. Alexander Lambert represents the result of thoroughwork based on the analysis and comparison of over 200 quite extensive nationalreports and can be considered as a useful complement to the Code’s commentaryelaborated by Professor Victor-Yves Ghebali in Part I of this book. As such,it is a stand alone mirror of trends and witness report of major developments,and a source of judgement with regard to basic implementation deficiencies.It therefore represents a basic document to which review updates on a periodicalbasis could refer. In this light, the author’s assessment of both the nationalreports (1999-2002) and the document’s regime efficiency represents a precioustool within the overall implementation process of the Code, thus underpinningand facilitating efforts by participating States to further promote and, as appro-priate, evolve their implementation measures. While carefully avoiding anyreference to a single national report, the author bases his conclusions on asignificant amount of both specific and representative information, thus ensuringa realistic and reliable picture of the first four years of the official informationexchange. It is an extremely useful contribution to efforts to universalise the

FOREWORD xxi

application and improvement of the quality of implementation of this key OSCEDocument.

Ambassador Lamberto ZannierDirector, OSCE Conflict Prevention Centre

GENERAL INTRODUCTION

The “Code of Conduct on Politico-Military Aspects of Security” (1994)is the most important normative document adopted by the OSCE participatingstates since the 1975 Helsinki Final Act. It occupies, among the body of com-mitments developed within the politico-military dimension of the OSCE, afundamental place for at least two basic reasons. First, it represents an instru-ment which has no real counterpart in any other international organisation;indeed, it can hardly be compared either to the United Nations Code of Conductfor Law Enforcement Officials (adopted by the United Nations General Assem-bly through Resolution 34/169 of 17 December 1979), or to some texts emanat-ing from the Parliamentary Assembly of the Council of Europe such as Resolu-tion 690 on a “Declaration on the Police” (8 May 1979) and Recommendation1402 on “Control of internal security services in Council of Europe memberstates” (26 April 1999). Second, it intrudes into an area of state power whichhas hitherto been normally considered taboo: armed forces; from this per-spective, it fills a normative gap since it offers a series of provisions regulatingthe role and use of armed forces (at domestic as well as external level) in thecontext of states where the rule of law prevails.

The Code of Conduct is the offspring of a proposal put forward by Francewith a view to a pan-European security treaty codifying the OSCE’s existingsecurity norms and spelling out fresh additional commitments aimed at respond-ing to the security vacuum concerns expressed by the former Warsaw Pact statesand the independent states coming from the dissolution of the USSR.2 Un-

2 During the second OSCE Ministerial Council Meeting, held in Prague in January1992, France tabled a non-paper stressing the relevance of a pan-European securitytreaty. For general indications on the substance of the French proposal, see The

V.-Y. Ghebali and A. Lambert, The OSCE Code of Conduct on Politico-Military Aspects of Security,

p. 1-15. © 2004, Koninklijke Brill NV. Printed in The Netherlands.

2 INTRODUCTION

surprisingly, the French project was dismissed by the United states and the otherWestern Allies (with the sole exception of Germany) on the grounds that aninstrument of that kind could, sooner or later, jeopardise NATO’s politicalfuture.

Given that the principle of post-Cold War security norms of behaviour wasmeeting a favourable echo, Germany advocated the alternative idea of apolitically binding instrument. Accordingly, France and Germany hammeredout a proposal on a “Code of Conduct on security relationships among particip-ating states”. Officially submitted to the 1992 Helsinki Follow-up Meeting withthe co-sponsorship of 11 other participating states,3 the text proposed that suchan instrument include three main building blocks:

- provisions reaffirming existing OSCE commitments related to the politico-military aspects of security (in particular the commitment to refrain from thethreat or use of force) and developing them in the form of “concrete rules ofbehaviour”;

- provisions defining new rules reflecting “the growing interaction betweenthe domestic behaviour of states and their mutual relations”; and

- provisions aiming at strengthening “the decision-making and executioncapabilities” of the OSCE.4

France and Germany also suggested that a thorough and open dialogue beconducted within the Forum for Security Cooperation (the OSCE specialisedbody for politico-military issues) under the following terms of reference: “theparticipating states will undertake consultations with a view to strengtheningthe role of the CSCE, by establishing a code of conduct governing their mutualrelations in the field of security, which could, in time, be further developed

Helsinki Follow-Up Meeting of the Conference on Security and Cooperation inEurope (March 24 – July 8, 1992). A Report Prepared by the Staff of theCommission on Security and Cooperation in Europe. Washington, Commission onSecurity and Cooperation in Europe, [1992], p. 32 – and also Jonathan Dean: “TheOSCE Code of Conduct on Politico-Military Aspects of Security: A Good Idea,Imperfectly Executed, Weakly Followed Up”, OSCE Yearbook, Volume 1-2, 1995-1996, p. 292.

3 The official co-sponsors were some European Union members – Belgium, Greece,Ireland and Spain – the Russian Federation, Bulgaria, Estonia, Malta, Poland andRomania (CSCE/HM/WG2/1 of 19 May 1992), as well as Kyrgyzstan (CSCE/HM/WG.2/1/Add. 1 of 16 June 1992). The full text of the proposal is reproduced inAnnex 2 of the present Commentary.

4 CSCE/HM/WG2/1 of 19 May 1992: paragraph 2.

INTRODUCTION 3

into a CSCE security treaty”.5 Stripped of any reference to a possible securitytreaty, that directive was inserted in item 12 (“Security enhancement consulta-tions”) of the Forum for Security Cooperation’s “Programme for ImmediateAction”.6

The negotiation of the Code of Conduct proceeded on the basis of fourcomprehensive draft texts.

First, a Polish proposal formulating guidelines for inter-state and intra-staterelations. From the first angle, it contained provisions building upon and am-plifying the principle of the non-use of force, as well as ensuring its full andeffective implementation through a formal “solidarity principle”. From thesecond angle, it offered a number of prescriptions concerning the democraticcontrol and use of armed forces. The Polish text probably represented the mostambitious of all other proposals tabled.7

Second, a “European Union plus” proposal largely similar, in its spirit andletter, to the Polish proposal – that is to say a paper focused on the politico-military aspects of security as well as on the democratic control and use ofarmed forces. Submitted independently from NATO by Denmark on behalf ofthe European Union as well as Canada, Iceland and Norway, it represented oneof the early expressions of the Common Foreign and Defence Policy (CFSP)of what was then the “European Community”. It also reflected the commonposition of all NATO members except the United States and Turkey. Actually,discussions on the Code of Conduct were initiated within NATO in the autumnof 1992, but they stopped when the Europeans decided to treat the issue as anCFSP project.8 For that reason, the “European Union plus” proposal, whoseeffect was to sideline NATO, generated American unease and displeasurethroughout the whole drafting process.

5 CSCE/HM/WG2/1 of 19 May 1992: paragraph 3 (author’s italics). The 1992 HelsinkiSummit Declaration also commits the OSCE participating states “to consider newsteps to further strengthen norms of behaviour on politico-military aspects ofsecurity” (third sentence of paragraph 22).

6 The “Programme for Immediate Action” represents the appendix to Chapter V ofthe Helsinki Decisions 1992.

7 Jonathan Dean: “The OSCE Code of Conduct on Politico-Military Aspects ofSecurity: A Good Idea, Imperfectly Executed, Weakly Followed Up”, OSCEYearbook, Volume 1-2, 1995-1996, p. 292.

8 Crispin Hain-Cole: “Negotiating the Code: A British View”, Cooperative Security,the OSCE and its Code of Conduct, Edited by Gert de Nooy. The Hague, KluwerLaw International, 1996, pp. 29 and 31.

4 INTRODUCTION

Third, a joint Austro-Hungarian proposal which, while reflecting practicallyall the basic elements of the Polish and the “European Union plus” proposals,offered additional commitments with respect to the human dimension (inparticular, a detailed section on the rights of national minorities), as well asthe economic and environmental dimension. The text illustrated a much broadersecurity approach than the two other set of proposals.

Fourth, a Turkish proposal visibly tabled to counterbalance (if not neutralise)the “European Union plus” text seen by Ankara as implying unwelcome dutiesvis-à-vis its Kurdish population.9 Basically, it contained provisions of a generalnature on “conditions for promoting peace, stability, security and cooperation”,“norms of conduct with direct effect on mutual relations” and “cooperation withregard to crisis situations”. It also included provisions of the same kind relatedto the human dimension, the environment, migrant workers, terrorism, illicitarms- and drugs-trafficking – as well as rare and timid elements concerningthe democratic control and use of armed forces.

Besides, specialised proposals were jointly tabled by Austria, Hungary andPoland on implementation arrangements of the Code of Conduct and byHungary alone on the issue of the democratic control and use of armed forces.France also submitted a working document recalling – for practicalmethodological purposes – the structure of the European Union’s proposal.

The complete list of official draft proposals presents as follows:

9 Dean, op. cit., p. 293. See also Adam Kobieracki: “Negotiating the Code: A PolishView”, Cooperative Security, the OSCE and its Code of Conduct. Edited by Gertde Nooy. The Hague, Kluwer Law International, 1996, p. 16.

INTRODUCTION 5

AUTHOR (s) TITLE REFERENCE

Poland CSCE Code of Conduct inthe Field of Security.

CSCE/FSC/SC.5/Rev.1 of 18November 1992 (1st version:CSCE/FSC/SC.5 of 11November 1992)

European Union, Canada,Iceland and Norway (“Euro-pean Union plus”).

CSCE Code of ConductGoverning Mutual RelationsBetween Participating statesin the Field of Security.

CSCE/FSC/SC.21 of 30 June1993 (1st version entitled“Elements for a CSCE Codeof Conduct GoverningMutual Relations BetweenParticipating states in theField of Security: CSCE/FSC/SC.7 of 16 December1992).

Turkey Code of Conduct Governingthe Mutual Relations of theCSCE Participating states inthe Field of Security.

CSCE/FSC/SC.8 of 16December 1992.

France Working Document Regard-ing [the Structure of theEuropean Union’s Proposalfor] a Code of Conduct.

CSCE/FSC/SC/B.2 of 3 June1993.

Austria and Hungary CSCE Code of ConductGoverning the Behaviour ofthe Participating statesTowards Each Other and ofGovernments Towards TheirCitizens.

CSCE/FSC/SC.22 of 15September 1993.

Austria, Hungary and Poland Implementation Provisionsfor a Code of Conduct.

CSCE/FSC/SC.17 of 5 May1993.

Hungary Democratic Control ofArmed Forces and their Use.

CSCE/FSC/SC.25 of 23February 1994.

Remarkably enough, no formal comprehensive draft proposal originatedfrom either the Russians or the Americans. At the time, the Russian Federationlacked a clearly formulated security strategy and was preoccupied by different

6 INTRODUCTION

security issues.10 As to the United states, its attitude reflected the displeasureof having being sidelined by the European Union.11 The main American con-cern throughout the drafting process was to arrive at a substantial text focusedon the democratic control of armed forces and to avoid anything leading towardssome sort of a pan-European security system liable to encourage a diminutionof NATO’s or the United states’ role in European affairs.12 The coordinationof the drafting process was, nevertheless, devolved to an American diplomat:James E. Hinds.

The Code of Conduct was negotiated within the Vienna Forum for SecurityCooperation, from November 1992 to late 1994. The three most controversialissues encountered during the drafting process concerned the Code’s conceptualscope (comprehensive security vs. politico-military aspects of security), theinterface of the OSCE with the other European security organisations (the so-called issue of “interlocking institutions”) and the question of the stationingof armed forces on the territory of other participating states.13 The Forum forSecurity Cooperation, exceptionally sitting in Budapest, adopted the last versionof the text on 3 December 1994.14 The latter was then transmitted to thedelegations of the Budapest Review Meeting which completed it at the lastmoment and handed it over to the heads of states or governments gathered atthe Budapest Summit. Finally, the Code of Conduct was included, as ChapterIV, in the Budapest Decisions 1994.15

Opened by a short preamble, the operative text of the Code of Conductconsists of 42 provisions structured into 10 untitled sections which actually

10 Kobieracki, op. cit., p. 20. However, the Russian Federation jointly tabled withPoland, on 23 March 1993, an informal (unnumbered) food for thought paperconcerning the “Possible Structure of the Code of Conduct”.

11 As stressed by Jonathan Dean, the members of the European Union were for thefirst time in the history of the pan-European process “caucusing separately fromNATO members [and] wanted a text that defined norms of European security” (op.cit., p. 292).

12 Kobieracki, op. cit., pp. 15-16. See also Hain-Cole, op. cit., p. 31 and Dean, op.cit., pp. 292 and 293.

13 These issues are addressed in the commentary on the Code of Conduct ’s title, andon paragraphs 4 and 14.

14 FSC/Journal No 94 of 3 December 1994.15 The 1994 Budapest Summit Declaration confirmed that “continuing the CSCE’s

norm-setting role”, the participating states have established a Code of Conduct “that,inter alia, set forth principles guiding the role of the armed forces in democraticsocieties” (paragraph 10).

INTRODUCTION 7

group three sets of provisions respectively related to inter-state norms (SectionsI-VI, paragraphs 1-19), intra-state norms (Sections VII-VIII, paragraphs 20-37)and implementation arrangements and final clauses (Sections IX-X, paragraphs38-42).

In the field of inter-state norms, the Code of Conduct does not add muchto the Helsinki Final Act’s Decalogue (1975) and the Charter of Paris for aNew Europe (1990). It can even be said that its added value is marginal. Indeed,the paragraphs constituting Sections I to VI are overwhelmingly made up ofrestatements of existing OSCE principles, norms or commitments – what thediplomats call in their jargon “the OSCE acquis”. The Code of Conductreaffirms or confirms the wholesale OSCE commitments (paragraph 1), theconcept of comprehensive security (paragraph 2), the indivisibility of securityin the OSCE area and beyond (paragraph 3), the cooperative security approach(paragraph 4), the commitment to take appropriate measures to prevent andcombat terrorism in all its forms (paragraph 6), the equal value of the HelsinkiFinal Act’s Principles (paragraph 7), the commitment of non-assistance orsupport to an aggressor state (paragraph 8), the right to self-defence (paragraph9), the right to free choice of security arrangements (paragraph 10), the goodfaith implementation of arms control, disarmament and CSBM commitments(paragraph 15), the need to pursue arms control, disarmament and CSBMmeasures (paragraph 16), the countering of economic/environmental and humandimension tensions conducive to conflicts (paragraph 17), the equal importanceof cooperation at the various phases of the conflict management cycle (paragraph18) and, finally, the relevance of cooperation for the peaceful resolution of andhumanitarian assistance support in armed conflicts (paragraph 19).

Only a handful of provisions related to inter-state norms bring more or lessinnovation in the OSCE context. These provisions concern the solidarityprinciple (paragraph 5), the maintenance of only those military capabilitiescommensurate with individual or collective security needs (paragraph 12), thedetermination of military capabilities through national democratic procedures(paragraph 13), the renunciation of military domination in the OSCE area(paragraph 13) and the authorisation to station armed forces on the territoryof another participating state in accordance with freely-negotiated agreementsas well as international law (paragraph 14).

By contrast, as regards intra-state relations, the Code of Conduct breaksreal new ground. Sections VII-VIII, which are related to the democratic controland use of armed forces, represent the real added value to the Code of Conduct.The latter can claim to be the first multilateral instrument embodying rulesregulating, at both internal and international levels, a central area of political

8 INTRODUCTION

power: armed forces. The provisions concerning the democratic control anduse of armed forces can be summarised by means of a comprehensive question– “Who must control what, how and why?”:

Who? What? How? Why?

Constitutionallyestablished author-ities vested withdemocratic legitim-acy (§ 21). Specificrole of the legislativebranch (§ 22).

Military forces, para-military forces, in-ternal security forces,intelligence servicesand the police (§ 20).First three categoriesonly (§§ 21, 27, 32).Paramilitary forces (§26).Irregular forces (§25).“Armed forces” (§§22, 23, 28, 30, 31,34, 35, 36, 37).

Primacy of constitu-tional civilian powerover military power(§§ 21, 22, 23, 24,25, 26).Subjection of armedforces to inter-national humanitarianlaw (§§ 29, 30, 31,34, 35).Respect of thehuman rights ofservicemen (§§ 23,27, 28, 32, 33).Commensurability ofthe domestic use offorce with the needsfor enforcement (§36) and prohibitionof use of force aimedat restricting thepeaceful and lawfulexercise of humanrights or at deprivingpeople of their indi-vidual or collectiveidentity (§ 37).

“An indispensableelement of stabilityand security” as wellas “an importantexpression of demo-cracy” (§ 20).

The “Who” element refers to “constitutionally established authorities”.However, this necessary condition is not sufficient: such authorities must alsobe “vested with democratic legitimacy” (paragraph 21), that is to say represent-ing the true will of the people. The competent authorities are the executivebranch and the legislative branch of government operating in the context ofa system of true separation of powers and, more broadly, of the rule of law.The provisions developed in Sections VII and VIII of the Code of Conductconcern (without explicitly mentioning it) the executive branch. Only one

INTRODUCTION 9

provision, that of paragraph 22 related to defence expenditures, refers to thelegislative branch.

The “What” element concerns the “armed forces”, a concept that the Codeof Conduct does not define in any way because of the diversity of nationaltraditions and practices in the OSCE area. Nevertheless, the concept is illustratedin paragraph 20 by five (equally undefined) categories: military forces, para-military forces, internal security forces, intelligence services and the police.The subsequent paragraphs of Section VII and Section VIII mention either thefirst three categories only (thus excluding intelligence services and the police)or just the “armed forces” – a general expression logically applicable to theregular forces of a national army. Besides, special provisions are devoted toparamilitary forces (paragraph 26) and “forces that are not accountable orcontrolled by (…) constitutionally established authorities” (paragraph 25) – aphrase obliquely referring to irregular forces.

The “How” element is related to four core aspects which actually represent,as seen from the OSCE, the pillars of the democratic control and use of armedforces:

a) The primacy of democratic constitutional civilian power over militarypower. The Code of Conduct commits the OSCE participating states to ensurethat, at all times, their constitutionally established authorities vested withdemocratic legitimacy provide for and maintain effective guidance to and controlof their military, paramilitary and security forces (paragraph 21) and that themilitary establishment is “politically neutral” (paragraph 23). It also commitsthem to provide for legislative approval military defence expenditures, as wellas restraint in, transparency of and public access to those of expenditures(paragraph 22). Finally, it formulates specific prescriptions concerning “acci-dental or unauthorised use of force” (paragraph 24), irregular forces (paragraph25) and paramilitary forces (paragraph 26).

b) The subjection of armed forces to the norms and prescriptions of inter-national humanitarian law. The Code of Conduct confirms three specific legallybinding obligations of international humanitarian law. The first emphasises theobligation of states to respect the corpus of international humanitarian law whichmust govern armed forces at the level of command, manning, training andequipment in time of peace as in wartime (paragraphs 29, 34 and 35). Thesecond is related to the obligation to promote knowledge of that corpus withinthe military establishment and the population (paragraphs 29 and 30). The thirdhas to do with the obligation to hold all military persons responsible for seriousviolations, whether commanders or subordinates, accountable for their actionunder national and international law (paragraphs 30 and 31).

10 INTRODUCTION

c) Respect of the human rights and fundamental freedoms of the armedforces personnel. While unequivocally implying that the armed forces “as such”(that is to say the military as a collective entity) cannot pretend to be abovethe law, the Code of Conduct admits that human rights do not stop at thebarracks. In other terms, individual servicemen are citizens and, as such, entitledto the exercise of civil rights (paragraph 23). Therefore, it prescribes that eachOSCE participating state ensure that its military, paramilitary and security forcespersonnel are able to enjoy and exercise their human rights and fundamentalfreedoms in conformity with international law and CSCE commitments (para-graph 32) – in particular that the recruitment or call-up of servicemen is con-sistent with the obligations and commitments concerning human rights andfundamental freedoms (paragraph 27). The OSCE participating states are alsocommitted to reflect in their laws or other relevant documents the rights andduties of armed forces personnel (paragraph 28), as well as to provide appropri-ate legal and administrative procedures to protect those rights (paragraph 33).

d) The regulation of the use of armed forces for internal security purposes.The Code of Conduct establishes that the domestic use of armed forces mustremain subject to the rule of law and that international law and internationalhumanitarian law provisions must be observed in the course of such use offorce, as in the case of inter-state armed conflicts. It spells out four conditionsregulating the domestic use of force: a constitutionally lawful decision, respectof the rule of law during operational performance, commensurability with theneeds for enforcement and care to avoid excessive injury to civilians and theirproperty (paragraph 36). Going a step further, it prohibits a domestic use offorce aimed at restricting human and civil rights when peacefully and lawfullyexercised or at depriving people of their individual or collective identity(paragraph 37).

Finally, the “Why” element is expressed through a provision specifyingthat the democratic control of armed forces represents “an indispensable elementof stability and security” as well as “an important expression of democracy”(paragraph 20). The democratic control of armed forces is certainly, to quoteone of the negotiators of the Code of Conduct, “a way to guarantee the internalstability of the state, its responsible behaviour towards its own citizens and otherstates, and as an instrument aimed at increasing the predictability of the state’sactions”.16 Indeed, as put by another negotiator, it brings an importantcontribution to internal and international stability because democratically-

16 Kobieracki, op. cit., p. 19.

INTRODUCTION 11

controlled armed forces “pose a considerably smaller risk of threateninginternational posturing and of internal abuse”.17 Furthermore, the democraticcontrol of armed forces represents, admittedly, a key element in the transitionfrom authoritarian to democratic political systems: the building andstrengthening of democratic structures can only succeed if armed forces enjoyingtrue legitimacy and respectability are part of them.18 In a mature rule-of-lawstate, no important political issue should be allowed to escape effective demo-cratic control. The ultimate aim of Sections VII and VIII taken as a whole isto promote an ethics, or a “conscience” of the rule of law, human rights andinternational humanitarian law in the military establishments of the OSCEparticipating states.

Given the diversity of national traditions and practices in the OSCE area,Sections VII and VIII do not propose a detailed or a specific type of modelfor the democratic control of armed forces.19 They only spell out major generalguidelines. Actually, a number of shortcomings or gaps can be accounted forin the Code of Conduct’s regime:

First, the latter provides only for executive and legislative control – thusomitting the judicial branch.20

Second, while committing the OSCE participating states to “reflect in theirlaws or other relevant documents” the rights and duties of armed forcespersonnel (paragraph 28), it does not offer any listing, even of a general type,of these rights and duties and does not develop the concept of “citizen inuniform”.21

17 Peter von Butler: “Negotiating the Code: A German View”, Cooperative Security,the OSCE and its Code of Conduct. Edited by Gert de Nooy. The Hague, KluwerLaw International, 1996, p.26.

18 Ortwin Hennig: “The Code of Conduct on Politico-Military Aspects of Security”,OSCE Yearbook, Volume 1-2, 1995-1996, pp.273-289).

19 For an overview of the existing literature see Hans Born’s contribution “DemocraticControl of Armed Forces. Relevance, Issues and Research Agenda” in Handbookof the Sociology of the Military. Edited by Giuseppe Caforio. New York, KluwerAcademic 2003, pp. 151-165.

20 However, paragraph 36 prescribes that internal security missions have to beperformed under the effective control of constitutionally established authorities and“subject to the rule of law” – which actually implies performance under the effectivecontrol of judicial as well as political civilian authorities.

21 As referred to in the commentary of paragraph 28, this is basically due to thesensitivity of the issues raised by the rights and duties of the “citizens in uniform”that servicemen are supposed to be.

12 INTRODUCTION

Third, it fails to establish that in case of usurpation of political control byarmed forces in any participating state, the other governments will considersuch an action as “a source of concern” and take urgently some appropriateaction including at least (in the spirit of the 1991 Moscow Document on theHuman Dimension) the non-recognition of the legitimacy of a usurper govern-ment.22

Fourth, although some of its provisions are related to defence expenditure(paragraph 22) and defence policies and doctrines (paragraph 35), there is noconceptual linkage between the Code of Conduct and the Vienna Documenton CSBM.

Fifth, its single explicit provision on paramilitary forces is weak: it doesnot even commit the OSCE participating states (as had been suggested duringthe drafting process) not to use paramilitary organisations to circumventlimitations related to the use and size of their armed forces under arms controlagreements.23

Sixth, its provisions dealing with international humanitarian law, especiallythose referring to the individual accountability of the command and rank andfile personnel of armed forces are much weaker than those of the 1949 GenevaConventions which commit the Contracting Parties to enact penal legislationdirected against persons responsible for grave breaches, as well as to searchfor and bring such persons (regardless of their nationality), before national oreven foreign courts.24

Seventh, its does not contain provisions expressly regulating the use ofarmed forces during a state of public emergency – a situation neverthelesspartially addressed in the Moscow Document on the Human Dimension(1991).25

22 Provisions of that kind were envisaged during the drafting process: see commentaryof paragraphs 21 and 23. In the Moscow Document on the Human Dimension (1991),which was adopted in the aftermath of the failed coup against Mikhail Gorbachev,the OSCE participating states committed themselves to “support vigorously”, incase of the overthrow or attempted overthrow of a legitimately elected governmentof a participating state by undemocratic means, “the legitimate organs of that stateupholding human rights, democracy and the rule of law…” (paragraph 17.2).

23 See commentary of paragraph 26.24 See commentary of paragraph 31.25 See commentary of paragraph 36. In the Moscow Document on the Human

Dimension (1991), the OSCE participating states affirmed that “a state of publicemergency may not be used to subvert the democratic constitutional order, nor aimat the destruction of internationally recognised human rights and fundamental

INTRODUCTION 13

Eight, it does not oblige the OSCE participating states to provide informationon domestic use of force – such as the size, organisation, role, objectives andactivities of armed forces involved.26

Finally, and as already mentioned above, while the Code of Conduct formal-ly refers to five categories of armed forces (military forces, paramilitary forces,internal security forces, intelligence services and the police), it does not containany operative provision whatsoever on intelligence services or the police.27

In addition, it ignores another important element of the security sector: borderguards.28

The Code of Conduct has been referred to in situations related todisproportionate and indiscriminate use of force in Croatia (1995) and,especially, in Chechnya since 1995 – as well as undue stationing of foreignarmed forces in Moldova.29 Although some of its basic provisions (in particularparagraphs 14 and 36) are still being violated in the OSCE area, the continuingrelevance of the Code of Conduct could not be doubted: as put by JonathanDean, Europe is better off with a violated Code of Conduct than with no suchinstrument.30 Furthermore, since the collapse of Communism, the democraticcontrol of armed forces, which is at the heart of the security sector reform, has

freedoms” (second sentence of paragraph 28.1). They also agreed that if a state ofpublic emergency may be proclaimed by a constitutionally lawful body dutyempowered to do so, subject to approval in the shortest possible time or controlby the legislature (paragraph 28.2), it will have to be lifted as soon as possible inorder not to remain in force longer than strictly required by the exigencies of thesituation (paragraph 28.3). More significantly, they decided that in case a state ofpublic emergency is declared or lifted, the government concerned will immediatelyinform the OSCE of this decision, as well as any derogation from its internationalhuman rights obligations (paragraph 28.10).

26 See commentary on paragraph 36.27 See commentary on paragraph 20.28 On the issue of border guards, see Alice Hills: Consolidating Democracy.

Professionalism, Democratic Principles and Border Services (14 p.) and BorderControl Services and Security Sector Reform. (32 p.). Geneva, Geneva Centre forthe Democratic Control of Armed Forces, 2002, Working Papers No 27 and No37.

29 And also (by Russia and Belarus) concerning NATO’s military intervention inKosovo: see commentary on paragraph 38.

30 Jonathan Dean: “The OSCE Code of Conduct on Politico-Military Aspects ofSecurity: A Good Idea, Imperfectly Executed, Weakly Followed Up”, OSCEYearbook, Volume 1-2, 1995-1996, p. 297. Indeed, “every norm raises the moralcost of its own violation” (Hennig, op.cit., p. 284)

14 INTRODUCTION

become one of the preconditions that emerging democracies have to meet inorder to accede to European and transatlantic organisations.

The European Union adopted accession criteria (referred to as the “Copen-hagen Criteria”) in 1993 – that is to say before the adoption of the OSCE Codeof Conduct which took place in late 1994; these criteria set up a number ofeconomic and political conditions, among which are the stability of institutionsguaranteeing democracy, the rule of law, human rights and respect for andprotection of national minorities.

NATO has expressed even greater concern over the issue. Under the Partner-ship for Peace’s Framework Document (January 1994), the subscribing statesundertook to cooperate with NATO in the pursuit of several objectives, interalia that of “ensuring democratic control of defence forces”.31 Consequently,and building upon the OSCE measures on defence planning, they agreed to“exchange information on the steps that have been taken or are being takento promote transparency in defence planning and budgeting and to ensure thedemocratic control of armed forces”.32 The “Framework Document” did notmention the Code of Conduct for the bare reason that the latter was still, atthe time, under negotiation within the Forum for Security Cooperation. Refer-ences to the Code of Conduct appeared in subsequent texts such as the Partner-ship for Peace’s Work Programme for 2000-2001 whose item 6 (defining thescope and objectives of activities to be pursued in the area of “democraticcontrol of forces and defence structures”) includes discussions on “progressin the implementation of the OSCE Code of Conduct”. However, in the 1999“Membership Action Plan” (MAP), a document designed to put in place aprogramme of activities to assist aspiring countries in their preparations forpossible future membership in NATO, there is no explicit mention of the Codeof Conduct: in its Section I, the MAP expects aspiring countries to settle ethnicor external territorial disputes by peaceful means “according to OSCE prin-ciples” (paragraph c) as well as “to establish appropriate democratic and civiliancontrol” of their armed forces (paragraph d).

Once a state has been admitted to NATO and/or the European Union thereare apparently few incentives to ensure continuous and sustainable long-termimprovements in the democratic control of its armed forces. Fortunately, ithappens that all former and potential candidates belong to the OSCE. BeingOSCE participating states, they are bound by the provisions of its Code ofConduct and their compliance record is subject to scrutiny.

31 Partnership for Peace’s Framework Document: paragraph 3 b.32 Ibid: penultimate “tick” of paragraph 6.

INTRODUCTION 15

The present book consists of two parts. Part I offers a paragraph-by-paragraph commentary on the Code of Conduct; it has been conceived as ahandbook whose aim is to contribute to a better understanding of the Codewithin and outside the OSCE community of states, as well as to facilitate itsimplementation.33 Part II provides a systematic assessment of the participatingStates’ information exchange on the Code since 1999, evaluates the Code’sregime efficiency, and discussed possible improvements to the exchange ofinformation process.

33 It is to be recalled that during the 2nd Follow-up Conference on the Code of Conduct,the Netherlands underscored the need for a « manual » on the Code of Conductaimed at facilitating the latter’s implementation (FSC.GAL/84/99/Rev.1 of 19 July1999).

P A R T I

PARAGRAPH-BY-PARAGRAPH COMMENTARY

ON THE CODE OF CONDUCT

[TITLE]“Code of Conduct on Politico-Military Aspects of Security”

During the drafting process, four different titles were envisaged: “Code ofConduct in the field of security” (Poland), “Code of Conduct governing mutualrelations between participating states in the field of security” (“European Unionplus” group of states), “Code of Conduct governing the mutual relations ofthe CSCE participating states in the field of security”, (Turkey) and “Code ofConduct governing the behaviour of the participating states towards each otherand of governments towards their citizens” (Austria and Hungary).34 Untilthe last moment, the scope of the concept of “security” constituted a bone ofcontention: should the Code of Conduct enunciate norms limited to the politico-military dimension or (as advocated by Austria and Hungary) extend to thehuman and economic/environmental dimensions?35 As its title clearly suggests,the Code of Conduct is a text related to the politico-military dimension of theOSCE, that is to say to a dimension encompassing conflict prevention, crisis

34 Poland: CSCE/FSC/SC.5/Rev.1 of 18 November 1992; “European Union plus”: CSCE/FSC/SC.21 of 30 June 1993; Turkey: CSCE/FSC/SC.8 of 16 December 1992; Austriaand Hungary: CSCE/FSC/SC.22 of 15 September 1993.

35 CSCE/FSC/SC.22 of 15 September 1993, pp. 10-14 and 15-17. In the course of thedrafting process, the Coordinator tabled a paper expressing his “desperation (…) onendless discussion concerning the scope of the Code of Conduct” (DOC. 715/94 of 14September 1994). See also Jonathan Dean: “The OSCE Code of Conduct on Politico-Military Aspects of Security: A Good Idea, Imperfectly Executed, Weakly FollowedUp”, OSCE Yearbook, Volume 1-2, 1995-1996, p. 293.



20 PART I

management and peaceful settlement of disputes (political component), as wellas arms control, disarmament and CSBM (military component).

Although explicitly conceived in the spirit of the comprehensive securityconcept (paragraph 2) and occasionally referring to the human and economic/environmental dimensions (paragraph 17), the Code definitely belongs to thepolitico-military dimension of which it represents a major instrument – alongwith the Vienna Document 1999 on CSBM and the Document on small armsand light weapons (2000).

[PREAMBLE]

Summary contents of Preamble: Parties to the Code (1st paragraph). The Codeof Conduct’s rationale (2nd paragraph). Undiminished status of internationallaw principles (3rd paragraph). Undiminished status of OSCE commitments(4thparagraph). Adoption of the Code of Conduct (5th paragraph).

The preamble of the Code of Conduct contains a set of five unnumberedparagraphs whose main provisions spell out the rationale for such an instrument(2nd paragraph) and stress that the latter is not meant to diminish the validityof either the legally-binding principles of international law (3rd paragraph) orthe politically binding commitments of the OSCE (4th paragraph).

Summary Contents of the Code of Conduct on Politico-Military Aspects of Security

Preamble: Parties to the Code (1st paragraph). The Code of Conduct’s rationale (2nd para-graph). Undiminished status of international law principles (3rd paragraph). Undiminishedstatus of OSCE commitments (4th paragraph). Adoption of the Code of Conduct (5th para-graph).

I. Reaffirmation of comprehensive security and cooperative security, and enunciationof the principle of solidarity: Wholesale reaffirmation of OSCE commitments (§ 1).Reaffirmation of the comprehensive security concept (§ 2). Reaffirmation of indivisibility ofsecurity in the OSCE area and beyond (§ 3). Reaffirmation of the cooperative securityapproach (§ 4). Enunciation of the solidarity principle (§ 5).

II. Reaffirmation of the commitment to cooperate against terrorism: Reaffirmation ofthe commitment to take appropriate measures to prevent and combat terrorism in all itsforms (§ 6).

COMMENTARY: PREAMBLE 21

III. Reaffirmation of the equal value of the Helsinki Final Act’s Principles and of thecommitment of non-assistance to aggressor states: Reaffirmation of the equal value of theHelsinki Final Act’s Principles (§ 7). Reaffirmation of the commitment of non-assistance orsupport to an aggressor state (§ 8).

IV. Security rights and obligations of OSCE participating states: Reaffirmation of theright to self-defence (§ 9). Reaffirmation of the right to freely choose security arrangements(§ 10). Reaffirmation of the right to belong to alliances and the right to neutrality (§ 11).Obligation to maintain only such military capabilities commensurate with individual orcollective security needs (§ 12). Obligation to determine military capabilities throughnational democratic procedures; renunciation of military domination in the OSCE area (§13). Authorisation to station armed forces on the territory of another participating state inaccordance with freely negotiated agreement as well as international law (§ 14).

V. Confirmation of the importance of the process of arms control, disarmament andCSBM: Importance of a good faith implementation of arms control, disarmament andCSBM commitments (§ 15). Reaffirmation of the commitment to pursue arms control, dis-armament and CSBM measures in the OSCE area (§ 16).

VI. Reaffirmation of commitments to cooperate in conflict prevention and crisis man-agement: Cooperation to counter economic/environmental and human dimension tensionsconducive to possible conflicts (§ 17). Reaffirmation of the equal importance of cooperationat the various phases of the conflict management cycle (§ 18). Cooperation for peacefulresolution and humanitarian assistance support in armed conflicts (§ 19).

VII. Democratic control of armed forces: Rationale for the democratic control of armedforces (§ 20). Primacy of the constitutionally established authorities vested with democraticlegitimacy over military power (§ 21). Legislative approval of, as well as restraint in, trans-parency of and public access to, military defence expenditures (§ 22). Political neutrality ofarmed forces and respect of civil rights of their individual members (§ 23). Safeguardsagainst military incidents due to accident or error (§ 24). Inadmissibility of forces that arenot accountable to or controlled by their constitutionally established authorities (§ 25). Pro-hibition of acquisition by paramilitary forces of combat mission capabilities in excess ofthose for which they were established (§ 26). Consistency with human rights of recruitmentor call-up of military, paramilitary and security forces (§ 27). Rights and duties of armedforces personnel, including possibility of exemptions from or alternatives to military service(§ 28). Promotion of the knowledge of international humanitarian law and reflection of itscommitments in military training programmes and regulations (§ 29). Instruction of armedforces personnel in international humanitarian law, including awareness of individualaccountability at domestic and international level (§ 30). Individual accountability of com-manders and subordinates of armed forces under national and international law (§ 31). Ex-ercise of their human rights by the personnel of military, paramilitary and security forces (§32). Legal and administrative national procedures for the protection of the rights of allforces personnel (§ 33).

22 PART I

VIII. Democratic use of armed forces: Consistency of the command, manning, trainingand equipment of armed forces with international humanitarian law (§ 34). Consistency ofdefence policy and doctrine with international humanitarian law and with the Code of Con-duct (§ 35). Subjection of the domestic use of force to the rule of law and commensurabilityof such use with the needs for enforcement (§ 36). Non use of force to limit either thepeaceful and lawful exercise of human and civil rights or to deprive people of their identity(§ 37).

IX. Implementation arrangements: Accountability for implementation (§ 38).

X. Final clauses: Politically binding nature of the Code of Conduct and date of its cominginto force (§ 39). Undiminished value of existing OSCE commitments (§ 40). Reflection ofthe Code’s commitments in relevant national internal documents, procedures or legal instru-ments (§ 41). Publication and widespread dissemination of the Code at national level (§ 42).

[1st paragraph][Parties to the Code of Conduct]

The participating states of the Conference on Security and Cooperation in Europe(CSCE),

This standard formula is the one which regularly introduces OSCE basictexts since the Helsinki Final Act (1975). It refers to the “participating states”(and not to the “contracting parties”) because the Code is, as expressly specifiedin paragraph 39 and like all OSCE normative texts, a document of a politicallybinding nature.

[2nd paragraph][The Code of Conduct’s rationale]

Recognising the need to enhance security cooperation, including through thefurther encouragement of norms of responsible cooperative behaviour in the fieldof security,

This paragraph indicates, in general and elliptic terms, the basic reason forwhich the OSCE Code of Conduct was established. The expressed motivation(“to enhance security cooperation, including through the further encouragementof norms of responsible cooperative behaviour in the field of security”) is aquasi integral reproduction of the first sentence of item 12 of the “Programmefor Immediate Action” devolved to the Forum for Security Cooperation by theHelsinki Decisions 1992. It does not refer to the second sentence of item 12


which formally commits the OSCE participating states to “undertake consulta-tions with a view to strengthening the role of the CSCE, by establishing a codeof conduct governing their mutual relations in the field of security”.36 Anyhow,it fails to mention that the Code of Conduct is the first multilateral instrumentembodying rules regulating, in a central area of political power, the deploymentof armed forces, both internally and externally.

Initially, the OSCE participating states envisaged justifying the Code ofConduct by much more illuminating considerations:

– Poland’s proposal referred to the need “to give expression to the coopera-tive approach to security characterising the qualitatively new type of relationswith the CSCE community of states” and “to facilitate a concerted responseto the security problems and challenges on the basis of a common assessmentof each other’s intentions, policies and behaviour in the security field”;37

– The “European Union plus” proposal argued that the emergence of a newpolitical environment in Europe based upon a common and cooperative approachto security, the necessity of devising new means to promote stability in thewhole OSCE area within regions and within states, as well as the strengtheningof the pluralistic and democratic nature of the political system of the particip-ating states required expression in a Code of Conduct spelling out internationalnorms for behaviour of states towards one another, for control and use of armedforces, and for the internal behaviour of governments;38

– The proposal jointly tabled by Austria and Hungary reflected almost allof the Polish and the European Union’s considerations.39

– In its draft proposal, Turkey justified the elaboration of the Code ofConduct mainly by the need to give further expression to the cooperativeapproach to security.40

In the Helsinki Decisions 1992, the OSCE participating states pledged toestablish “new security relations based upon a common and cooperativeapproach to security”.41 As a matter of fact, a justificatory preamble’s provision

36 The text of the “Programme for Immediate Action” constitutes the appendix to ChapterV of the Helsinki Decisions 1992. Item 12 of the Programme is entitled “Securityenhancement consultations”.

37 CSCE/FSC/SC.5/Rev.1 of 18 November 1992, p. 1.38 CSCE/FSC/SC.21 of 30 June 1993, p. 1.39 CSCE/FSC/SC.22 of 15 September 1993, pp.1-2.40 CSCE/FSC/SC.8 of 16 December 1992, pp. 1-2.41 Helsinki Decisions 1992 (1992): paragraph 15 of Chapter V. Paragraph 2 of the same

chapter acknowledges “the opportunities for new cooperative approaches to strengtheningsecurity offered by the historic changes and by the process of consolidation of democracy

24 PART I

should have mentioned that the Code of Conduct was grounded on the conceptof comprehensive security and the cooperative security approach. These twinpillars are, however, referred to in section I of the Code of Conduct.42

[3rd paragraph][Undiminished status of existing international law principles]

Confirming that nothing in this Code diminishes the validity and applicability ofthe purpose and principles of the Charter of the United Nations or of other pro-visions of international law,

The OSCE participating states agreed from the outset that the Code ofConduct would build upon and complement existing internationally recognisedprinciples and commitments. Accordingly, this paragraph amounts to a sort of“non-diminution clause” in regard to existing international law. It confirms thatthe Code of Conduct’s provisions are not meant to modify the contents orprejudice the applicability of any existing principles and norms of internationallaw and, in particular, those enshrined in Chapter I (“Purposes and Principles”)of the United Nations Charter. It is worth recalling here that the “Principles”enumerated in Article 2 of the Charter include the sovereign equality of states,the fulfilling in good faith of the Charter’s commitments, the peaceful settlementof disputes, the refraining from the threat or use of force and the duty to giveassistance to the United Nations in case of collective action: except for the lastone, all of them represent individual items of the 1975 Helsinki Final Act’sDecalogue.43

[4th paragraph][Undiminished status of existing OSCE commitments]

Reaffirming the undiminished validity of the guiding principles and commonvalues of the Helsinki Final Act, the Charter of Paris and the Helsinki Document1992, embodying responsibilities of states towards each other and of governmentstowards their people, as well as the validity of other CSCE commitments,

in the CSCE community of states” .42 In the operative part of the Code of Conduct, the OSCE participating states did confirm

the validity of their comprehensive security concept (paragraph 2) and the relevanceof their cooperative security approach (paragraph 4).

43 They respectively represent Principle I (“Sovereign equality; respect for the rightsinherent in sovereignty”), Principle X (“The fulfilling in good faith of obligations underinternational law”), Principle V (“Peaceful settlement of disputes”) and Principle II(“Refraining from the threat or use of force”).


As OSCE commitments are of politically-binding nature and could not becovered by the provision of the preceding paragraph, the participating statesdeemed it appropriate to insert a non-diminution clause also as regards existingOSCE norms. Accordingly, the present paragraph means that the Code ofConduct’s provisions do not modify the contents or prejudice the applicabilityof the principles and values enshrined in such fundamental OSCE documentsas the Helsinki Final Act (1975), the Charter of Paris for a New Europe (1990)and the Helsinki Document 1992.44

The expression “the validity of other CSCE commitments”, included uponGermany’s insistence, gives to the non-diminution clause an open-ended scope.In any case, this idea is reiterated in paragraph 40 in the following terms:“Nothing in this Code alters the nature and content of the commitments under-taken in other OSCE documents”.

As to the expression “responsibilities of states towards each other and ofgovernments towards their people”, it relevantly recalls that OSCE commitmentsconcern intra-state as well as inter-state relations. As expressed in the IstanbulCharter for European Security (1999), the OSCE fundamental texts haveestablished “standards for participating states’ treatment of each other and ofall individuals within their territories”, which also means that “participatingstates are accountable to their citizens and responsible to each other for theirimplementation of their OSCE commitments”.45 In the framework of theOSCE, “security and peace must be enhanced through an approach whichcombines two basic elements”: “[the building of] confidence among peoplewithin states and [the strengthening of] cooperation between states”.46

[5th paragraph][Adoption of the Code of Conduct]

Have adopted the following Code of Conduct on politico-military aspects ofsecurity:

When they are not (exceptionally) signed, the OSCE basic texts are simply“adopted” as is the case of standard international organisations’ Declarations

44 The Helsinki Document 1992 (sub-titled “The Challenges of Change”) consists of theHelsinki Decisions 1992 and the 1992 Helsinki Summit Declaration.

45 Istanbul Charter for European Security (1999): paragraph 7. This provision is a restate-ment of paragraph 5 of the Lisbon Declaration on a Common and ComprehensiveSecurity Model for Europe for the 21st century (1996).

46 Istanbul Charter for European Security (1999): paragraph 3.

26 PART I

and resolutions. The term “adopted” also reflects the politically-binding natureof the Code of Conduct which is specifically confirmed in paragraph 39.Some participating states were of the opinion that the Code of Conduct should,given its outstanding importance, have been open to signature – as was the casefor the Helsinki Final Act (1975) and the Charter of Paris for a New Europe(1990).47 Due to objections from the United States, this did not materialise.Finally, the Code of Conduct was just included (as Chapter IV) in the BudapestDecisions 1994.48

SECTION I[REAFFIRMATION OF COMPREHENSIVE SECURITY AND COOPERATIVE

SECURITY, AND ENUNCIATION OF THE SOLIDARITY PRINCIPLE]

Summary contents of Section I: Wholesale reaffirmation of OSCE commitments(§ 1). Reaffirmation of the comprehensive security concept (§ 2). Reaffirmationof indivisibility of security in the OSCE area and beyond (§ 3). Reaffirmationof the cooperative security approach (§ 4). Enunciation of the solidarity prin-ciple (§ 5).

Section I of the Code of Conduct comprehends five paragraphs most ofwhich represent, in line with the “non-diminution clause” of the 4th provisionof the preamble, reaffirmations of the validity of existing OSCE principles(paragraphs 1, 2, 3 and 4) – what diplomats call, in their jargon, the “OSCEacquis”. Only paragraph 5, which enunciates the principle of “solidarity”, isto some extent innovative.

47 The closing provision of the draft Polish proposal clearly mentioned “the undersignedHigh representatives of the participating states…” (CSCE/FSC/SC.5/Rev.1 of 18 Novem-ber 1992, p. 14; author’s italics). Since 1990, only the Istanbul Charter for EuropeanSecurity (1999) enjoyed the privilege of formal signature.

48 The Budapest Document 1994 (sub-titled “Towards a Genuine Partnership in a NewEra”) consists of the Budapest Decisions 1994 and the 1994 Budapest Summit Declara-tion – as well as a Declaration on the 50th anniversary of the termination of WWII anda Declaration on Baltic issues.

COMMENTARY: SECTION I 27

Paragraph 1[Wholesale confirmation of OSCE commitments]

The participating states emphasis that the full respect for all CSCE principlesembodied in the Helsinki Final Act and the implementation in good faith of allcommitments undertaken in the CSCE are of fundamental importance for stabilityand security, and consequently constitute a matter of direct and legitimate concernto all of them.

This paragraph reaffirms in general terms the validity of the principlesenshrined in the 1975 Helsinki Final Act and of all other commitments sub-scribed to by the participating states ever since in the framework of the OSCE.It also emphasises that these principles and commitments must be fully respectedand implemented in good faith – as prescribed by Principle X of the HelsinkiDecalogue.

More importantly, it recalls that OSCE principles and commitments represent“a matter of direct and legitimate concern” to all participating states which areaccountable to each other for complying fully with them through what mightbe called a right of friendly interference. The Geneva Report on NationalMinorities (19 July 1991) formally established such a right in stating that “issuesconcerning national minorities, as well as compliance with international obliga-tions and commitments concerning the rights of persons belonging to them,are matters of legitimate international concern and consequently do not con-stitute exclusively an internal affair of the respective state”.49 Through theMoscow Document on the Human Dimension (3 October 1991), the participatingstates broadened the scope of the same right in recognising “categorically andirrevocably” that the commitments undertaken in the field of the human dimen-sion (those related to human rights, fundamental freedoms, democracy and therule of law) are “matters of direct and legitimate concern to all participatingstates and do not belong exclusively to the internal affairs of the state con-cerned”.50 The Code of Conduct goes further since it extends the right offriendly interference to “all commitments” undertaken in the OSCE, across allthe three dimensions of the latter.

49 Geneva Report on National Minorities (1991): 3rd unnumbered paragraph of Section II.50 Moscow Document on the Human Dimension (1991): 9th unnumbered paragraph of the

preamble (author’s italics). In its paragraph 8, the 1992 Helsinki Summit Declarationconfirmed the Moscow statement.

28 PART I

Paragraph 2[Reaffirmation of the comprehensive security concept]

The participating states confirm the continuing validity of their comprehensiveconcept of security, as initiated in the Final Act, which relates the maintenance ofpeace to the respect for human rights and fundamental freedoms. It links eco-nomic and environmental cooperation with peaceful inter-state relations.

In this paragraph, whose language restates paragraph 21 of the 1992 HelsinkiSummit Declaration, the participating states formally reaffirm the validity ofthe OSCE’s concept of comprehensive security. They recall that the conceptintertwines the politico-military aspects of security (disarmament, arms control,CSBM, conflict prevention and conflict management), economic and environ-mental cooperation and the human dimension – all matters constituting the“three dimensions” (formerly “baskets”) of the OSCE. The concept of compre-hensive security is also reflected in paragraph 17 of the Code of Conduct.

A more recent reconfirmation of the continuing validity of the concept ofcomprehensive security is included in the Istanbul Charter for EuropeanSecurity (1999), which acknowledges that “the human, economic, political andmilitary dimensions of security” have to be addressed “as an integral whole”.51

Paragraph 3[Reaffirmation of the indivisibility of security in the OSCE area and beyond]

They remain convinced that security is indivisible and that the security of each ofthem is inseparably linked to the security of all others. They will not strengthentheir security at the expense of the security of other states. They will pursue theirown security interests in conformity with the common efforts to strengthen securityand stability in the CSCE area and beyond.

This paragraph concerns the indivisibility of security, which is a basic featureof both the comprehensive security concept and the cooperative securityapproach. Indeed, the OSCE considers the three dimensions of its comprehensivesecurity programme as an interdependent and indivisible whole requiring paralleland balanced progress in all of their component elements; furthermore, its

51 Istanbul Charter for European Security (1999): paragraph 9. The same document alsostresses that “the link between security, democracy and prosperity has become increasing-ly evident in the OSCE area, as has the risk to security from environmental degradationand depletion of natural resources” and that “economic liberty and social justice andenvironmental responsibility are indispensable for prosperity” (paragraph 31).


cooperative security approach postulates the interdependence of the securityinterests of all participating states.

The first sentence of paragraph 3 recalls the mutual interdependence of theOSCE participating states in the field of security – a notion affirmed in theHelsinki Final Act (1975) and reaffirmed ever since in many texts, includingthe Charter of Paris for a New Europe (1990) and the Istanbul Charter forEuropean Security (1999).52

Proceeding from that premise, the second sentence stresses the undertakingof the OSCE participating states not to pursue their own security interests ina way which could adversely affect the security of others – that is to say, toconsider the implications that their actions may have on the security ofothers.53 Given that the security of “other states” (and not just of “other partici-pating states”) is explicitly mentioned here, this obviously means that non-par-ticipating states – those enjoying the status of OSCE’s “Partner for cooperation”– are also concerned.54 In any case, the expression “in the CSCE area andbeyond”, which closes the third sentence, confirms that the indivisibility ofsecurity is a principle applicable not only within the OSCE community ofparticipating states but also between the latter and non-participating states.

The third and last sentence underscores that the quest for security can onlybe cooperative – a joint endeavour based on common security interests (“com-mon efforts”), antipodal to a zero-sum game.55 As the Istanbul Charter forEuropean Security (1999) puts it, “within the OSCE, no state, organisation,or grouping can have any pre-eminent responsibility for peace and stability in

52 Helsinki Final Act (1975): 5th unnumbered paragraph of the preamble of the First Basket;Charter of Paris for a New Europe (1990): 5th paragraph of the rubric on “Friendlyrelations among participating states”; Istanbul Charter for European Security (1999):paragraph 9. See also the 1992 Helsinki Summit Declaration (paragraph 23) and theHelsinki Decisions 1992 (paragraph 7 of Chapter V).

53 The standard formula “they will not strengthen their security at the expense of thesecurity of other states” also appears in the 1996 Lisbon Declaration on a Common andComprehensive Security Model for Europe for the 21st Century (second sentence ofparagraph 7) and the 1999 Istanbul Charter for European Security (fifth sentence ofparagraph 8).

54 In 1994, the status of “Partner for cooperation” was enjoyed by some Mediterraneanstates (Algeria, Egypt, Israel, Morocco, Tunisia) and Asian states (Japan and the Republicof South Korea). Since the adoption of the Code of Conduct, the same status wasattributed to Jordan (1998), Thailand (2000) and Afghanistan (2003).

55 As recalled in paragraph 15 of the Code of Conduct, the indivisibility of security requiresthe implementation in good faith of each of the commitments in the field of arms control,disarmament and CSBM.

30 PART I

the OSCE area or can consider any part of the OSCE area as its sphere ofinfluence”.56

Paragraph 4[Reaffirmation of the cooperative security approach]

Reaffirming their respect for each other’s sovereign equality and individuality aswell as the rights inherent in and encompassed by its sovereignty, the particip-ating states will base their mutual security relations upon a cooperative approach.They emphasise in this regard the key role of the CSCE. They will continue todevelop complementary and mutually reinforcing institutions that include Euro-pean and transatlantic organisations, multilateral and bilateral undertakings andvarious forms of regional and sub-regional cooperation. The participating stateswill cooperate in ensuring that all such security arrangements are in harmonywith CSCE principles and commitments under this Code.

This paragraphs refers to the cooperative security approach from the dualangle of the OSCE participating states (first and second sentences) and the inter-national security structures to which they belong (third and fourth sentences).

Cooperative security relations between participating states. After the endof the Cold War, the OSCE endorsed the approach of “common security”(proposed in the 80s by the Palme Independent Commission on Disarmamentand Security Issues) while labelling it “cooperative security”.57 In the HelsinkiDecisions 1992, the participating states expressed for the first time their deter-mination to develop “new security relations based upon cooperative and com-mon approaches to security” and, for that purpose, established a new specialisedbody: the Forum for Security Cooperation.58 Through the Budapest Decisions1994, they formally acknowledged that the OSCE was contributing to “co-

56 Istanbul Charter for European Security (1999): last sentence of paragraph 8. A similarprovision is included in the 1996 Lisbon Declaration on a Common and ComprehensiveSecurity Model for Europe for the 21st Century (last sentence of paragraph 7) and inthe Copenhagen’s Ministerial Council Decision on Guidelines on an OSCE Document-Charter on European Security (paragraph 4 of MC(6).Dec/5 of 19 December 1997).

57 In its final Report (Common Security. A Programme for Disarmament. London, PanBooks, 1982), the Independent Commission on Disarmament and Security Issues headedby Olof Palme argued that, in a bipolar nuclear world, security based on deterrence andmutual assured destruction could only lead to planetary catastrophe: instead of beingplayed as a zero-sum game to the benefit of a single actor or group of actors, securityshould be conceived as a cooperative endeavour bringing equal advantages to all states.

58 Helsinki Decisions 1992: paragraph 15 of Chapter V.


operative security” in its geopolitical area.59 The Istanbul Charter for EuropeanSecurity (1999) confirmed that the participating states were building their mutualrelations on “the concept of common and comprehensive security”.60 Initiallyintroduced at the level of the politico-military dimension, the cooperativesecurity approach was gradually applied to the other dimensions as well. Atpresent, the OSCE implements a programme of comprehensive security bymeans of a cooperative security approach.61

There is still no agreed OSCE definition of cooperative security. Actually,the general common understanding of the OSCE community of states is thatit represents a regime excluding confrontation, hegemonic behaviour and uni-lateralism, while also characterised by equal partnership, confidence, mutualaccountability, solidarity, preventive diplomacy, self-restraint and militarytransparency.62

Cooperative security represents a soft form (of a non-coercive nature) ofcollective security. As a principle, violations of common commitments by aparticipating state are not followed by sanctions or even recriminations.63 Theygenerate offers of assistance aimed at helping the concerned state to redressa situation deemed to be detrimental to itself and (given the indivisibility ofsecurity) to the rest of the collectivity of states. As such offers are not normallysupposed to be rejected, this means that the parties to a cooperative securityregime admit their mutual accountability and accept as legitimate a right offriendly interference in their internal affairs. Cooperative security is not directlyconcerned with acts of aggression, but rather by their prevention and – ifperpetrated – their consequences; however, preventive measures remain itspriority form of action.

59 Budapest Decisions 1994: introductory sentence to Chapter VII on “A Common andComprehensive Security Model for Europe for the 21st century”.

60 Istanbul Charter for European Security (1999): paragraph 9.61 As illustrated, inter alia, by paragraphs 10 and 34 of the Istanbul Charter for European

Security (1999), the concepts of “comprehensive security” and “cooperative security”are also directly associated with those of “common security” and “indivisible security”.

62 The 1996 Lisbon Declaration on a Common and Comprehensive Security Model forEurope for the 21st Century (1996) admits that the cooperative security approach“excludes any quest for domination” (paragraph 3) and also explicitly refers to “equalpartnership”, “solidarity” and “transparency” (paragraph 9).

63 The suspension of the Federal Republic of Yugoslavia from the OSCE (1992) and theestablishment of “Sanctions Assistance Missions” (1993) for the monitoring of theDanube represented exceptional events whose recurrence is now hardly conceivable.

32 PART I

The first sentence of paragraph 4 of the Code of Conduct confirms therelevance of the (still undefined) concept of a cooperative security approachthrough a formal reaffirmation of the principle of the sovereign equality of stateswhich lies at the heart of its philosophy. As to the second sentence, it simplyrecognises the “key role” played by the OSCE as a cooperative security institu-tion.64

Cooperative security relations between international security structures.If the question of cooperative relations between the OSCE participating stateswas fully consensual, that of the interface of international security organisationsto which they belong (the so-called issue of “interlocking institutions”) con-stituted one of the main stumbling blocks in the drafting process of the Codeof Conduct.65 Since the end of the Cold War, because of persistent French-American squabbles, the participating states were for quite some time unableto arrive at clear decisions on the nature of the working relations that the OSCEshould establish with NATO and, as a consequence, other European and trans-atlantic security organisations.66 Accordingly, when Poland suggested a formalengagement from the OSCE participating states “to promote contacts with andamong” other existing security organisations (namely NATO, the WEU andthe European Union),67 it was not followed up and only a compromise pro-vision confirming the status quo was eventually agreed: hence the third sentenceof paragraph 4 of the Code of Conduct which commits governments to “continueto develop” complementary and mutually reinforcing institutions; the expression“complementary and mutually reinforcing institutions” was used in place of

64 In the 1996 Lisbon Declaration on a Common and Comprehensive Security Model forEurope for the 21st Century, the participating states acknowledged that “the OSCE playsa central role in achieving [the] goal of a common security space” (paragraph 4).

65 Two other issues were also particularly divisive: the inclusion in the Code of Conductof substantial provisions related to the economic/environmental dimension and humandimension of security (see paragraph 5 of the Introduction to the present Commentary)and the stationing of the armed forces of a participating state on the territory of anotherparticipating state (paragraph 14).

66 Consensus was achieved only in the hypothetical area of peacekeeping activities andincluded in the Helsinki Decisions 1992 where the participating states agreed that “theCSCE may benefit from the resources and possible experience and expertise of existingorganisations such as the EC, NATO and the WEU, and could therefore request themto make their resources available in order to support it in carrying out peacekeepingactivities” and that “other institutions and mechanisms, including the peacekeepingmechanism of the Commonwealth of Independent states (CIS), may also be asked bythe CSCE to support peacekeeping in the CSCE region” (paragraph 52 of Chapter III).

67 CSCE/FSC/SC.5/Rev.1 of 18 November 1992, pp. 7-8.


“interlocking institutions” because of France’s opposition to a concept bearingNATO’s official brand.68

The fourth and last sentence of paragraph 4 acknowledges in vague termsthe necessity of harmonising the operation of existing security organisationsand arrangements with the OSCE principles and the commitments embodiedin the Code of Conduct – and not, as suggested by Austria and Hungary, ofensuring that they were “complementary” and that their overall evolution willlead to “a security network reflecting the OSCE’s cooperative approach”.69

The OSCE began to develop a pragmatic operational interaction with NATOin 1996, for the sake of implementing the Dayton Framework Agreement.70

Taking stock of what was a growing trend, the Istanbul Charter for EuropeanSecurity (1999) offered a “Platform for Cooperative Security” defining themodalities for cooperation between the institutions contributing to security inthe OSCE area and endorsing the basic values of the OSCE.71 Since then, theissue of “interlocking institutions” has ceased to be a divisive one.

Paragraph 5[Enunciation of the solidarity principle]

They are determined to act in solidarity if CSCE norms and commitments areviolated and to facilitate concerted responses to security challenges that they mayface as a result. They will consult promptly, in conformity with their CSCEresponsibilities, with a participating state seeking assistance in realising its indi-vidual or collective self-defence. They will consider jointly the nature of the threatand actions that may be required in defence of their common values.

68 NATO proposed the concept of “interlocking institutions” in the early 90s within suchtexts as the Rome Summit Declaration of 8 November 1991 (paragraph 3) and the OsloNorth Atlantic Ministerial Communiqué of 4 June 1992 (paragraph 2).

69 CSCE/FSC/SC.22 of 15 September 1993, p. 3.70 In the same year, the Lisbon Declaration on a Common and Comprehensive Security

Model for Europe for the 21st Century (1996) stated that “European security requiresthe widest cooperation and coordination among participating states and European andtransatlantic organisations” and that the OSCE “is particularly well-suited (…) to actin partnership with them, in order to respond effectively to threats and challenges inits area” (5th “tick” of paragraph 10).

71 The Istanbul Charter for European Security (1999) acknowledges that no single inter-national organisation has the capacity to respond alone to the complex and multifacetedsecurity challenges of the post-Cold War world (paragraph 12). The goal of the Platformis “to strengthen the mutually reinforcing nature of the relationship between thoseorganisations and institutions concerned with the promotion of comprehensive securitywithin the OSCE area” (paragraph 1 of the Platform’s text).

34 PART I

This paragraph derives from a set of Polish ideas concerning solidarity withvictims of the violation of the principle of the non-use of force or, in otherterms, aggression. From the start of the negotiation, Poland suggested attributingto the Code of Conduct the aim of “building upon and amplifying” the principleof the non-use of force as well as “ensuring its full and effective implementa-tion”.72 Accordingly, it tabled a series of specific provisions which, afterrecalling the right of self-defence of states in the event of an armed attack,stressed the necessity of emergency consultations within the framework of theOSCE and enunciated the right of any participating state to seek assistance“in the realisation of its right to self-defence as it may deem appropriate”. ThePolish text proposed to the participating states “to consider duly such requestsand reply accordingly” – in particular to examine in a positive spirit demandsfor “purchase of material and equipment on favourable lending conditions” andto refrain from any kind of support to a state violating the prohibition of thenon-use of force. It also suggested that they support and facilitate the deliveryof humanitarian assistance to populations affected by armed hostilities.73

Paragraph 5 of the Code of Conduct reflects in attenuated form the mainthrust of the Polish proposals. The first sentence, which is a general enunciationof the solidarity principle, simply affirms that, whenever OSCE norms andcommitments are violated, the participating states “are determined to act insolidarity” (and not “will act”) – and only “to facilitate concerted responses”to security challenges generated by such violations.

In more affirmative language, the second sentence commits the participatingstates to undertake prompt consultations with any of them “seeking assistancein realising its individual or collective self-defence”.

However, the third sentence announces that the participating states will notgo beyond “consider[ing] jointly the nature of the threat and actions that maybe required” in defence of their common values.74

72 CSCE/FSC/SC.5/Rev.1 of 18 November 1992, p. 2.73 CSCE/FSC/SC.5/Rev.1 of 18 November 1992, p. 11. In their joint proposal, Austria

and Hungary reformulated the Polish proposal in the following terms: “The participatingstates in full conformity with their conviction that security is indivisible, will expressand practice solidarity with states clearly exposed to direct security threats. They will,in particular, practice solidarity with a participating state subjected to an armedaggression and seeking assistance in the realisation of its right to self-defence” (CSCE/FSC/SC.22 of 15 September 1993, pp. 4-5; author’s italics).

74 The basic commitment of paragraph 5 of the Code of Conduct was reiterated in the1996 Lisbon Declaration on a Common and Comprehensive Security Model for Europefor the 21st Century (1996): (1st and 2nd “tick” of paragraph 6) .


The other elements of the Polish proposal were not included in the contextof the solidarity principle. Nevertheless, they generated paragraph 8 (non-assistance or support to an aggressor state) and paragraph 19 (cooperation insupport of humanitarian assistance in case of armed conflicts) of the Code ofConduct.

In the Istanbul Charter for European Security (1999), the participating statesconfirmed the dual components of the solidarity principle (prompt consultationsand possible joint actions) – with a slight readjustment acknowledging that theprinciple in question could be invoked in the event of threats against the sover-eignty, territorial integrity and political independence of any of them.75 Theyalso admitted that the solidarity principle could be extended to those of themmeeting difficulties in complying with OSCE commitments (joint cooperativeactions in the event of non-compliance with the OSCE commitments by aparticipating state)76 or even facing internal breakdown of law and order.77

Although drafted in weak terms and not mentioning the concept of “aggres-sion”, paragraph 5 of the Code of Conduct (as confirmed in paragraph 16 ofthe Istanbul Charter) can be viewed, from a purely theoretical perspective, asthe embryo of a potential pan-European security guarantee. In any case, it

75 “We will consult promptly, in conformity with OSCE responsibilities, with a participatingstate seeking assistance in realising its right to individual or collective self-defence inthe event that its sovereignty, territorial integrity and political independence arethreatened. We will consider jointly the nature of the threat and actions that may berequired in defence of our common values” (paragraph 16 of the Istanbul Charter forEuropean Security). This provision derives from Maltese proposals for a mechanismallowing those participating states that are not members of any politico-military allianceto request assistance (including military) from the OSCE’s security organisations partners:REF.PC/423/97 of 23 May 1997, PC.SMC/26/98 of 15 May 1998, PC.SMC/99/98/Rev.1of 25 September 1998, PC.SMC/44/99 of 12 March 1999, PC.DEL/165/99 of 26 March1999 (p. 2), PC.SMC/139/99 of 10 September 1999 and PC.DEL/542/99 of 18 October1999.

76 “Today, we commit ourselves to joint measures based on cooperation, (…), in orderto offer assistance to participating states to enhance their compliance with OSCEprinciples and commitments” (paragraph 14 of the Istanbul Charter for EuropeanSecurity). This provision derives from new Polish proposals on the solidarity principle:REF.PC/743/96 and REF.PC/744/96 of 15 November 1996, REF.PC/369/97 of 9 May1997, REF.PC/422/97 of 23 May 1997 and REF.RM/298/96 of 20 November 1998.

77 “We are determined to consider ways of helping participating states requesting assistancein cases of internal breakdown of law and order. We will jointly examine the natureof the situation and possible ways and means of providing support to the state in ques-tion” (paragraph 15 of the Istanbul Charter for European Security). In 1997, the OSCEdid provide assistance to Albania in such a situation.

36 PART I

represents one of the four limited innovations of the Code of Conduct in therealm of inter-state norms.78

SECTION II[REAFFIRMATION OF THE COMMITMENT TO COOPERATE AGAINST

TERRORISM]

Section II concerns terrorism, which before the adoption of the Code ofConduct had unreservedly been condemned by the OSCE as constituting a threatto security, democracy and human rights. From the 1975 Helsinki Final Act(where direct assistance to terrorist and other subversive activities in inter-national relations was prohibited in the framework of Principle VI on non-intervention in internal affairs) to the 1994 Budapest Summit Declaration, theOSCE approach to terrorism amounted to a purely vocal determination, fromthe participating states, to take measures for the prevention and suppressionof terrorism. At unilateral level, the measures contemplated basically concernedthe prohibition of illegal activities of persons, groups and organisations thatinstigate, organise or engage in the perpetration of acts of terrorism againstgovernment representatives or ordinary citizens – and the “encouragement” ofexchange of information. Internationally, the OSCE participating states onlyenvisaged becoming parties (if they had not already done so) to the relevantinternational conventions relating to terrorism as well as to ensuring the extra-dition or prosecution of persons implicated in terrorist acts – while stressingthat the United Nations was the most appropriate multilateral framework wherethe issue of terrorism must be frontally addressed.79

78 The three other innovations are respectively embodied in paragraph 12 (obligation tomaintain only such military capabilities as are commensurate with individual or collectivesecurity needs), paragraph 13 (obligation to determine military capabilities throughnational democratic procedures, coupled with a commitment on the renunciation ofmilitary domination in the OSCE area) and paragraph 14 (authorisation to station armedforces on the territory of another participating state in accordance with freely negotiatedagreement as well as international law).

79 Helsinki Final Act (1975): last sentence of Principle VI of the Decalogue; ConcludingDocument of the Madrid Follow-up Meeting (1983): 4th to 7th paragraphs of the firstBasket’s rubric on “Principles”; Document of the Stockholm Conference on CSBM andDisarmament in Europe (1986): paragraph 25; Concluding Document of the ViennaFollow-up Meeting (1989): paragraphs 10.1 to 10.7 of the first Basket’s rubric on“Principles”; Charter of Paris for a New Europe (1990): 5th paragraph of the rubric on“Security” related to the section entitled “Guidelines for the future”; 1992 Helsinki

COMMENTARY: SECTION II 37

Paragraph 6[Reaffirmation of the commitment to take appropriate measures to prevent and

combat terrorism in all its forms]The participating states will not support terrorist acts in any way and will takeappropriate measures to prevent and combat terrorism in all its forms. They willcooperate fully in combating the threat of terrorist activities through implementa-tion of international instruments and commitments they agree upon in this respect.They will, in particular, take steps to fulfil the requirements of internationalagreements by which they are bound to prosecute or extradite terrorists.

In the drafting process of the Code of Conduct, the issue of terrorism wasintroduced by Turkey, which wanted to give it a prominent place by meansof a commitment concerning the establishment of effective international instru-ments.80 The “European Union plus” group of states disagreed on the groundsthat the United Nations – and not the OSCE – was the most relevant forumfor addressing the issue of terrorism.81 As Turkey made the elaboration ofprovisions on terrorism a sine qua non condition for the acceptance of the Codeof Conduct, the latter finally included a specific section on terrorism. However,

Summit Declaration: paragraph 26; 1994 Budapest Summit Declaration: paragraph 6.80 However, article 12 of the official Turkish proposal for a Code of Conduct (CSCE/FSC/

SC.8 of 16 December 1992) only suggested that the OSCE participating states “willfully cooperate with each other, as stipulated in the CSCE documents, against the threatof terrorist and subversive activities [and will] review their domestic law and regulationswith a view to denying all political, financial, material and moral support to suchactivities” (first sentence of article 12). Actually, Turkey wanted a commitment con-cerning the establishment of effective international instruments. The Turkish draft alsocommitted the OSCE participating states to “take all legal and administrative measuresagainst organisations, groups of communities which utilise force, coercion, terrorismand other violent and undemocratic methods aimed at changing the democratic constitu-tional order of any participating state and ban the activities of those groups whichadvocate, support or condone such methods” (first sentence of article 17). Subsequently,Turkey would raise the idea of a special Code of Conduct concerning terrorism(REF.FSC/426/96 of 23 October 1996 and FSC.DEL/446/01 of 10 October 2001).

81 The “European Union plus” proposal for a Code of Conduct contained only a generaland mild provision on terrorism (CSCE/FSC/SC.21 of 30 June 1993, p. 4) – as did theAustro-Hungarian proposal (CSCE/FSC/SC.22 of 15 September 1993, p. 8) and the Polishproposal (CSCE/FSC/SC.5/Rev.1 of 18 November 1992). A contradictory debate onthe respective relevance of the OSCE and the United Nations as regards terrorism tookplace subsequently at the 1999 OSCE Review Conference (RC.GAL/175/99 of 10November 1999, p. 65; position of the European Union: RC.DEL/162/99 of 28 September1999).

38 PART I

that section consists of a single paragraph which does not go beyond reaffirmingthe OSCE acquis: a verbal commitment not to support terrorism and to takeundetermined (“appropriate”) measures to prevent and combat terrorism, a vaguecommitment to implement possible new international obligations (“internationalinstruments and commitments they agree upon in this respect”) and a mildcommitment (“take steps to fulfil the requirements”) concerning the prosecutionor extradition of terrorists.

Under a decision taken in July 1998 by the Forum for Security Cooperation,the OSCE participating states established a procedure providing for an exchangeof information on the implementation of the Code of Conduct through a standardquestionnaire including 10 items.82 Item No 1 is related to “Appropriatemeasures to prevent and combat terrorism, in particular participation in inter-national agreements to that end”.

After the adoption of the Code of Conduct, the issue of terrorism wasmarginally referred to – as part and parcel of new security risks and challenges –in the Lisbon Declaration on a Common and Comprehensive Security Modelfor Europe for the 21st Century (1996) and the Istanbul Charter for EuropeanSecurity (1999).83 However, in reaction to the terrorist acts perpetrated in theUnited States on 11 September 2001, terrorism acquired outstanding importanceovernight. Hence the Bucharest Plan of Action for Combating Terrorism(adopted at ministerial level in December 2001) which set up a framework forcomprehensive actions to be taken by participating states and the OSCE as awhole both through the proper activities of all its bodies and in cooperationwith other fora.84 The Plan of Action envisaged a large set of preventivemeasures pertaining to all three OSCE dimensions. At the level of the politico-military dimension, it tasked the Forum for Security Cooperation to enhance,inter alia, the implementation of paragraph 6 of the Code of Conduct.85

In 2002, prompted by the fact that national replies to item No 1 of the 1998questionnaire were generating an increasing flow of different types of informa-tion, the Russian Federation advocated the establishment of a separate

82 FSC.DEC/4/98 of 8 July 1998.83 Lisbon Declaration on a Common and Comprehensive Security Model for Europe for

the 21st Century (1996): paragraph 2; Istanbul Charter for European Security (1999):paragraph 4. See also paragraph 14 of the 1999 Istanbul Summit Declaration (terrorismin Central Asia).

84 Annex to MC(9).DEC/3 of 4 December 2001.85 Annex to MC(9).DEC/3 of 4 December 2001: paragraph 8. Roadmap for Implementation

of the Bucharest Plan of Action submitted by the Forum for Security Cooperation:FSC.DEC/5/02 of 20 March 2002.

COMMENTARY: SECTION II 39

specialised questionnaire on terrorism.86 The Forum for Security Cooperationdid not endorse the idea. However, as called for in its own Roadmap for Imple-mentation of the Bucharest Plan of Action and following a joint Russian-Ameri-can initiative, it decided to expand the scope of the information required underitem No 1 of the 1998 questionnaire into a series of elements.87 Accordingly,each of the OSCE participating states was now formally committed to indicatethe list of all international agreements concerning terrorism (or related to theissue) to which it is a party, the pertinent domestic legislation taken to imple-ment those international agreements – and “the roles and missions of armedand security forces in preventing and combating terrorism”.88

As illustrated by many additional initiatives – the Programme of Actionof the Bishkek Conference on Strengthening Comprehensive Efforts to CounterTerrorism in Central Asia (December 2001), the establishment of an “Actionagainst Terrorism Unit” within the OSCE Vienna Secretariat (as well as of anODIHR Coordinator on Anti-Terrorism Issues in Warsaw), the appointmentby the Portuguese Chairman-in-Office of a Special Representative for Preventingand Combating Terrorism or the adoption of the Porto Charter on Preventingand Combating Terrorism – terrorism is now a top priority at practically alllevels of OSCE activities.89

SECTION III[REAFFIRMATION OF THE EQUAL VALUE OF THE HELSINKI FINAL ACT’S

PRINCIPLES AND OF THE COMMITMENT OF NON-ASSISTANCE TOAGGRESSOR STATES]

Summary contents of Section III: Reaffirmation of the equal value of theHelsinki Final Act’s Principles (§ 7). Reaffirmation of the commitment of non-assistance or support to an aggressor state (§ 8).

86 FSC.DEL/311/02 of 6 June 2002 and FSC.DEL/320/02 of 12 June 2002.87 Russian-American draft proposals: FSC.DEL/506/02/Rev.1 of 19 September 2002 and

FSC.DEL/533/02 of 1 October 2002.88 FSC.DEC/16/02 of 27 November 2002.89 A comprehensive overview is provided for by the Report on Actions of OSCE and

Institutions to prevent and Combat Terrorism, including Implementation of the BucharestPlan of Action for Combating Terrorism and the Bishkek Programme of Action(SEC.DOC/3/02 of 29 November 2002). Text of the Porto Charter: MC(10).JOUR/2,Annex 1, of 7 December 2002.

40 PART I

As a direct complement to Section I, Section III includes two re-affirmativeprovisions of a different nature – one which is a general reminder of the equalvalue of the Helsinki Final Act’s 10 Principles (paragraph 7) and one whichrestates the specific duty, enshrined in the Charter of the United Nations, ofnon-assistance or support to an aggressor state (paragraph 8).

Paragraph 7[Reaffirmation of the equal value of the Helsinki Final Act’s Principles]

The participating states recall that the principles of the Helsinki Final Act are allof primary significance and, accordingly, that they will be equally and un-reservedly applied, each of them being interpreted taking into account the others.

This paragraph is a word-by-word restatement of one the final clauses ofthe 1975 Helsinki Final Act’s Decalogue whose rationale was to preclude anà la carte interpretation – in particular from the USSR which, during theDecalogue’s negotiation, attempted to introduce a hierarchy among the tenPrinciples. It would certainly have made much more sense to insert such arestatement within (or immediately after) paragraph 1 of the Code of Conductwhere the participating states reaffirm the validity of all the Principles enshrinedin the Helsinki Final Act. Given that the Code of Conduct does not containprovisions confirming the validity of every single Principle (as envisaged duringthe drafting process), it was felt necessary to stress the equal value of the latterin order to preempt any possible reinterpretation of the Decalogue in the post-Cold War era.

Paragraph 8[Reaffirmation of the commitment of non-assistance or support to an aggressor

state]The participating states will not provide assistance to or support states that are inviolation of their obligation to refrain from the threat or use of force against theterritorial integrity or political independence of any state, or in any other mannerinconsistent with the Charter of the United Nations and with the Declaration onPrinciples Guiding Relations between Participating States contained in theHelsinki Final Act.

This paragraph reaffirms, with some nuances, a basic commitment of theUnited Nations Charter pledging the United Nations’ member states to “refrainfrom giving assistance to any state against which the United Nations is takingpreventive or enforcement action” (Article 2, paragraph 5) – and which is only

COMMENTARY: SECTION III 41

affirmed implicitly in Principle II of the 1975 Helsinki Decalogue.90 The slightinnovations it introduces with respect to the United Nations Charter and theOSCE Decalogue are two-fold.

First, the Code of Conduct expressly prohibits “support” in addition to“assistance” – without, however, specifying that this includes due respect ofsanctions, embargoes and other measures undertaken against the violator state.

Second, the prohibition is not only aimed at any OSCE participating statewhich would violate the basic prescription of non-use of force. It is valid asregards any state, whether a participating or a non-participating state.

The commitment established here, and which is consistent with the indivisib-ility of security, has been confirmed in the Lisbon Declaration on a Commonand Comprehensive Security Model for Europe for the 21st Century (1996).91

SECTION IV[SECURITY RIGHTS AND OBLIGATIONS OF OSCE PARTICIPATING STATES]

Summary contents of Section IV: Reaffirmation of the right to self-defence (§9). Reaffirmation of the right to freely choose security arrangements (§ 10).Reaffirmation of the right to belong to alliances and the right to neutrality (§11). Obligation to maintain only such military capabilities commensurate withindividual or collective security needs (§ 12). Obligation to determine militarycapabilities through national democratic procedures; Renunciation of militarydomination in the OSCE area (§ 13). Authorisation to station armed forceson the territory of another participating state in accordance with a freelynegotiated agreements as well as international law (§ 14).

In Section IV of the Code of Conduct, the participating states agreed toinclude several security rights and obligations half of which represent simplereaffirmations as in the case of the right to self-defence (paragraph 9), the rightto freely choose security arrangements (paragraph 10), the right to be or nota party to treaties of alliance and the right to neutrality (paragraph 11). The

90 In the second unnumbered paragraph of Principle II of the Decalogue, the OSCEparticipating states pledged to refrain from any acts constituting a direct or indirect useof force against another participating state.

91 In this text, the OSCE participating states recommitted themselves “not to supportparticipating states that threaten or use force in violation of international law againstthe territorial integrity or political independence of any participating state” (6th “tick”of paragraph 6).

42 PART I

only limited innovations introduced by Section IV are related to the duty tomaintain military capabilities commensurate with individual or collectivesecurity needs (paragraph 12), the duty to determine military capabilities throughnational democratic procedures coupled with a commitment on the renunciationof military domination in the OSCE area (paragraph 13) and the right to stationarmed forces on foreign territory in accordance with the free consent of thehost state and international law (paragraph 14).

Paragraph 9[Reaffirmation of the right to self-defence]

The participating states reaffirm the inherent right, as recognised in the Charterof the United Nations, of individual and collective self-defence.

This paragraph is a partial restatement of article 51 of the Charter of theUnited Nations. It does not specify that such a right is preconditioned by theoccurrence of an “armed attack”. Indeed, the United States refused to includethe expression “if an armed attack occurs” on the ground that its worldwideinterests could necessitate a preventive use of military force in regions locatedoutside the OSCE.92

Paragraph 10[Reaffirmation of the right to freely choose security arrangements]

Each participating state, bearing in mind the legitimate security concerns of otherstates, is free to determine its security interests itself on the basis of sovereignequality and has the right freely to choose its own security arrangements, inaccordance with international law and with commitments to CSCE principles andobjectives.

The present provision (together with that of paragraph 11 which comple-ments it) was included at the request of those former members of the WarsawPact Treaty Organisation and former Soviet Republics seeking accession toNATO. In the spirit of the mutual sovereign equality of all OSCE participatingstates, it recognises that each of them has the liberty to determine its ownnational security interests and the general right to freely choose its own national

92 The United States raised the same argument with regard to the drafting of paragraph14 of the Code of Conduct concerning the stationing by a participating state of armedforces on the territory of another participating state.

COMMENTARY: SECTION IV 43

security arrangements – for instance through alliance treaties or neutrality asspecified in paragraph 11 of the Code of Conduct.

The phrase “bearing in mind the legitimate security concerns of other states”introduces, in the spirit of paragraph 3 of the Code of Conduct which commitsthe OSCE participating states not to “strengthen their security at the expenseof the security of other states”, a qualification. However, such qualification isclearly subjective and mild: “to bear in mind” does not have the same constrain-ing value as “to take into account” (or “respect”) the security interests of othersparticipating states, as was suggested during the drafting process.93

As to the phrase “in accordance with international law and with commit-ments to CSCE principles and objectives”, it recalls that the freedom to deter-mine national security interests and the right to freely choose security arrange-ments are embedded in international law and also in basic OSCE documents– such as the Helsinki Final Act (1975), the Charter of Paris for a New Europe(1990), the Helsinki Decisions 1992, the Lisbon Declaration on a Common andComprehensive Security Model for Europe for the 21st Century (1996) and theIstanbul Charter for European Security (1999).94

Paragraph 11[Reaffirmation of the right to belong to alliances and the right to neutrality]

The participating states each have the sovereign right to belong or not to inter-national organisations, and to be or not a party to bilateral or multilateraltreaties, including treaties of alliance; they also have the right to neutrality. Eachhas the right to change its status in this respect, subject to relevant agreementsand procedures. Each will respect the rights of all others in this regard.

93 During the drafting process, it was even suggested that “notwithstanding these rights,the participating states will not conclude treaties or agreements or enter into securityarrangements with any state, aimed at adversely affecting the security of other participa-ting states” (DOC. 171 of 5 May 1994).

94 Helsinki Final Act (1975): last sentence of Principle I of the Decalogue; Charter of Parisfor a New Europe (1990): 3rd paragraph of the rubric on “Security” included under thegeneral heading of a “New Era of Democracy, Peace and Unity”); Helsinki Decisions1992: paragraph 6 of Chapter V; Lisbon Declaration on a Common and ComprehensiveSecurity Model for Europe for the 21st Century (1996): paragraph 7; Istanbul Charterfor European Security (1999): paragraph 8. See also paragraph 4 of the Decision onGuidelines on an OSCE Document-Charter on European Security (MC(6).Dec/5 of 19December 1997).

44 PART I

The present provision (as well as that of paragraph 10 of which it is an ex-tension) was included at the request of those former members of the WarsawPact Treaty Organisation and former Soviet Republics seeking accession toNATO.

The first sentence, which recognises the sovereign right of each of the OSCEparticipating states to belong (or not) to an international organisation, to beparty (or not) to a treaty establishing a bilateral or multilateral alliance as wellas to neutrality, is a practical illustration of the right to freely choose nationalsecurity arrangements enunciated in the preceding paragraph. Its wording isa quasi literal restatement of the last sentence of Principle I (“Sovereign equal-ity, respect for the rights inherent in sovereignty”) of the 1975 Helsinki Deca-logue.95

The initial rationale for such a provision was the de-legitimisation of thehegemonic Soviet policy in Eastern and Central Europe. After the end of theCold War, it was meant to allow the former members of the Warsaw Pact TreatyOrganisation and other interested states to join the European Union and/orNATO if they freely wished to do so. This is precisely why the second sentenceof paragraph 11 confirms that each of the OSCE participating states has “theright to change its status in this respect, subject to relevant agreements andprocedures” – a right subsequently restated in paragraph 7 of the LisbonDeclaration on a Common and Comprehensive Security Model for Europe forthe 21st Century (1996) and paragraph 8 of the Istanbul Charter for EuropeanSecurity (1999).96

The phrase “subject to relevant agreements and procedures” fulfils thepurpose of a safeguard clause: it recalls that admission to internationalorganisations is not automatic, but requires the consent of member states andthe observance of specific procedures.

In relation to the principle of indivisibility, under which the OSCE particip-ating states are required not to strengthen their security at the expense of thesecurity of other states, the third sentence of paragraph 11 introduces a qualifica-tion (“each will respect the rights of all other in this regard”) which is stronger

95 “[The participating states] also have the right to belong or not to international organisa-tions, to be or not to be a party to bilateral or multilateral treaties, including the rightto be or not to be a party to treaties of alliance; they also have the right to neutrality”(last sentence of Principle I of the Decalogue).

96 Both texts refer to “the inherent right of each and every participating state to be freeto choose or change its security arrangements, including treaties of alliance as theyevolve” (paragraph 7; author’s italics).


than that of paragraph 10 which prescribes “bearing in mind the legitimatesecurity concerns of other states”. In any case, as illustrated by the issue ofNATO’s eastward enlargement, the notion of equal respect of the securityinterests of all states is not unambiguous in the sense that it aims to bridge twoconflicting (if not irreconcilable) elements: the free choice of security arrange-ments and the legitimate security rights of third party states. In 2002, in theframework of the OSCE’s Forum for Security Cooperation, the Russian Federa-tion still argued that the right recognised in paragraphs 10 and 11 of the Codeof Conduct had to be exercised “in a way that takes account of the legitimatesecurity interests of other states” and did not lead to “an undermining ofregional and global stability”.97

Paragraph 12[Obligation to maintain only such military capabilities commensurate with

individual or collective security needs]Each participating state will maintain only such military capabilities as are com-mensurate with individual or collective legitimate security needs, taking intoaccount its obligations under international law.

Paragraph 12 (as complemented by paragraph 13) represents one of the fourrelative innovations of the Code of Conduct in the realm of inter-state norms.98

This is so because it commits the OSCE participating states for the first timeto put limits – although on the basis of the vague notion of “commensurabil-ity” – to their military capabilities.

It is obviously inspired by Article VI of the 1990 Treaty on ConventionalArmed Force in Europe (CFE) which sets forth a so-called “sufficiency rule”fixing at approximately one-third the legal holdings of any single state Partyin each of the five categories of conventional armament and equipment limited

97 In more practical terms, “this means that the expected decision on the next round ofNATO enlargement must be taken in a way that at the same time takes into accountthe politico-military consequences of that enlargement in close cooperation with thosestates whose legitimate interests will be affected as result of it” (FSC.DEL/530/02 of24 September 2002).

98 The three other innovations are respectively those of paragraph 5 (solidarity principle),paragraph 13 (obligation to determine military capabilities through national democraticprocedures, coupled with a commitment on the renunciation of military domination inthe OSCE area) and paragraph 14 (authorisation to station armed forces on the territoryof another participating state in accordance with freely negotiated agreements as wellas international law).

46 PART I

by the Treaty within its area of application and which are the most relevantto launching a large-scale surprise attack. The incorporation of the sufficiencyrule in the CFE Treaty provided for the renunciation by the USSR of militarydomination in Europe.

Paragraph 12 makes no reference to the CFE Treaty, presumably becausesome of the OSCE participating states were not parties to the latter and didnot intend to accede to it. Moreover, it refers to the vague notion of“commensurability” and not to a quantifiable “sufficiency”.99

In the phrase “maintain only such military capabilities as are commensuratewith individual or collective legitimate security needs”, the verb to maintainmeans to keep and acquire. The needs referred to are basically those relatedto the protection of national territory, implementation of defence or alliancetreaties and peace enforcement commitments under the United Nations.100

As to the phrase, “taking into account its obligations under international law”it contains some redundancy in so far as it concerns, for instance, obligationstowards the United Nations.

It is to be mentioned that in Section VII of the Code of Conduct, dealingwith the democratic control of armed forces, a specific provision prescribesthat each OSCE participating state should “exercise restraint in its militaryexpenditures” (paragraph 22).

99 In the Lisbon Declaration on a Common and Comprehensive Security Model for Europefor the 21st Century (1996), the participating states reconfirmed the prescription oncommensurability, with slight nuances, in the following terms: “… we reaffirm thatwe shall maintain only such military capabilities as are commensurate with individualor collective legitimate security needs, taking into account its rights and obligationsunder international law. We shall determine our military capabilities on the basis ofnational democratic procedures, in a transparent manner, bearing in mind the legitimatesecurity concerns of other states as well as the need to contribute to international securityand stability (6th “tick” of paragraph 10; author’s italics).

100 Concerning commensurability, Poland proposed that “the participating states will keepthe levels of their armed forces to the minimum commensurate with legitimate commonor individual security needs within Europe and beyond” (CSCE/FSC/SC.5/Rev.1 of 18November 1992, p. 2; author’s italics). The “European Union plus” text suggested that“the participating states affirm their commitment to maintain only such military capabilityas necessary to prevent war, fulfil their commitments with regard to the UN or theCSCE, manage crises and provide for effective defence, including in implementationof defence or alliance treaties” (CSCE/FSC/SC.21 of 30 June 1993, p. 6. author’s italics).In their joint draft proposal, Austria and Hungary offered a provision stipulating that“the participating states reaffirm their commitment to maintain only such militarycapabilities as are commensurate with common or individual legitimate security needswithin the CSCE area and beyond” (CSCE/FSC/SC.22 of 15 September 1993, p. 5).


Paragraph 13[Obligation to determine military capabilities through national democratic

procedures. Renunciation of military domination in the OSCE area ]Each participating state will determine its military capabilities on the basis ofnational democratic procedures, bearing in mind the legitimate security concernsof other states as well as the need to contribute to international security andstability. No participating state will attempt to impose military domination overany other participating state.

Through the notion of “commensurability” (a prescription for the determina-tion of military capabilities), paragraph 12 enunciates a criterion of a subjectivecharacter. In its first sentence, paragraph 13 introduces an additional objectivecriterion – “national democratic procedures” (parliamentary intervention andoversight) – which also represents an advance element of the Code of Conduct’ssubsequent provisions on the democratic control of armed forces (SectionVII).101 The phrase “bearing in mind the legitimate security concerns of otherstates” has exactly the same subjective qualifying meaning as in paragraph 10of the Code of Conduct. As to the phrase “the need to contribute to inter-national security and stability”, it is equivalent to that of paragraph 12 whichrefers to “obligations under international law”.

The second sentence of paragraph 13 is manifestly misplaced. The statementthat “no participating state will attempt to impose military domination overany other participating state” constitutes a logical prolongation of the provisionof paragraph 12 on the maintenance of “only such military capabilities as arecommensurate with individual or collective legitimate security needs, takinginto account its obligations under international law”. Indeed, as mentioned inthe commentary on paragraph 12, the incorporation of the sufficiency rule inthe 1992 Treaty on Conventional Armed Force in Europe amounted to therenunciation by any single state Party of building military superiority inEurope.102

101 It is to be mentioned that in Section VII of the Code of Conduct, which deals with thedemocratic control of armed forces, a specific provision prescribes that each OSCEparticipating state “provide for transparency and public access to information relatedto the armed forces” (paragraph 22).

102 The Polish draft proposal on a Code of Conduct contained a provision significantlycommitting the OSCE participating states to “refrain from any attempt to build militarysuperiority allowing any single state to dominate military the CSCE area” (CSCE/FSC/SC.5/Rev.1 of 18 November 1992, p. 2; author’s italics).

48 PART I

Under a decision taken in July 1998 by the Forum for Security Cooperation,the OSCE participating states established a procedure providing for an exchangeof information on the Code of Conduct’s implementation through a standardquestionnaire comprising 10 items.103 Item No 2 is related to “Nationalplanning and decision making-process for the determination of the militaryposture, including (a) the role of Parliament and ministries and (b) public accessto information related to armed forces”; it concerns paragraph 22 as well.

Paragraph 14[Authorisation to station armed forces on the territory subject of another

participating state in accordance with a freely negotiated agreements as well asinternational law]

A participating state may station its armed forces on the territory of anotherparticipating state in accordance with their freely negotiated agreement as well asin accordance with international law.

The issue of the stationing by a participating state of armed forces on theterritory of another participating state represented, until the very last moment,a stumbling block in the drafting process of the Code of Conduct.104 BesideCyprus, it was of direct concern for a number of OSCE participating states:

a) the three Baltic states in their claim for the withdrawal of Russian militaryforces – a matter finally resolved in August 1994, a few months before theformal adoption of the Code of Conduct;105

b) Moldova, on the territory of which Russian troops were stationed againstthe express will of the government; and

c) Azerbaijan, in view of a possible OSCE Russian-led peacekeeping opera-tion in Nagorno-Karabakh.

103 FSC.DEC/4/98 of 8 July 1998.104 Two other issues were also particularly divisive: the inclusion in the Code of Conduct

of substantial provisions related to the economic/environmental dimension and humandimension of security (see commentary on the title of the Code of Conduct) and theso-called issue of interlocking institutions referred to in paragraph 4.

105 In the 1992 Helsinki Summit Declaration, the OSCE participating states recognised that“even where violence has been contained, the sovereignty and independence of somestates still needs to be upheld” and expressed support “for efforts by CSCE participatingstates to remove, in a peaceful manner and through negotiations, the problems that remainfrom the past, like the stationing of foreign armed forces on the territories of the Balticstates without the required consent of those countries”. Accordingly, they called on theconcerned states “to conclude, without delay, orderly and complete withdrawal of suchforeign troops from the territories of the Baltic states” (paragraph 15).


In its basic proposal for a Code of Conduct, Poland included a provisioncommitting the participating states to ensure that the territorial integrity andpolitical independence of each participating state are inviolable and, accordingly,that “no foreign forces will be stationed on the territory of a participating statewithout that state’s explicit consent” and that those forces “will be withdrawnimmediately if such consent has been invalidated”.106 The “European Unionplus” draft text proposed a practically similar provision with the followingaddition: “this obligation does not affect in any way the prerogatives of theSecurity Council as established in Chapter VII of the United Nations Char-ter”.107 As to the Austro-Hungarian draft proposal, it suggested a wordingborrowing from both the Polish and the European Union drafts, but withoutreference to the United Nations Security Council.108

All three proposals enunciated a prohibition (“no participating state willstation its armed forces …”, “no foreign forces will be stationed…”) whoselifting would depend on the explicit and free consent of the host state and also(as envisaged in the “European Union plus” text) on a relevant decision takenby the United Nations Security Council under Chapter VII of the Charter.However, during the drafting process, an alternative permissive wording (“armedforces of participating state may be stationed on the territory of another particip-ating state…”) was suggested – by an undetermined delegation – subject totwo preconditions: “only in accordance with international law and as agreedbetween them”.109

Invoking its special international security responsibilities, which couldnecessitate new military operations in Iraq, the United States rejected theconjunction “and” which linked the expression “in accordance with internationallaw” to that of “as agreed between them” – and suggested “or otherwise” asa substitute. This was refused by Turkey which considered that “only in accord-ance with international law” would empower the permanent members of theSecurity Council, acting under Chapter VII of the Charter, to decide the station-ing of troops in any state – a dubious argument given that the Security Council’s

106 CSCE/FSC/SC.5/Rev.1 of 18 November 1992, p. 6.107 CSCE/FSC/SC.21 of 30 June 1993, p. 5.108 CSCE/FSC/SC.22 of 15 September 1993, p. 9.109 DOC. 188 of 9 May 1994 (pp. 2-3), DOC.319 of 6 June 1994 (pp. 5-6) and DOC. 551

of 22 July 1994.

50 PART I

competence established by the United Nations Charter cannot be affected byany of the provisions of the OSCE politically-binding Code of Conduct.110

Paragraph 14 of the Code of Conduct was finally drafted in permissive (andnot prohibiting) language. It was thus agreed that “a participating state maystation its armed forces on the territory of another participating state in accord-ance with their freely negotiated agreement as well as in accordance withinternational law”. The adjective “only” was dropped out and the linkagebetween the two preconditions (freely negotiated agreements/international law)was established by means of the expression “as well as”. Furthermore, the textof paragraph 14 makes no reference to the United Nations Security Council.However, in the Lisbon Declaration on a Common and Comprehensive SecurityModel for Europe for the 21st Century (1996), the OSCE participating statestook the commitment to “ensure that the presence of foreign troops on theterritory of a participating state is in conformity with international law, the freelyexpressed consent of the host state, or a relevant decision of the United NationsSecurity Council”.111

Under a decision taken in July 1998 by the Forum for Security Cooperation,the OSCE participating states established a procedure providing for an exchangeof information on the Code of Conduct’s implementation through a standardquestionnaire comprising 10 items.112 Item No 3 is related to the “Stationingof armed forces on the territory of another participating state with their freelynegotiated agreement as well as in accordance with international law”.

110 Anyhow, as specified in the third paragraph of its Preamble, the Code of Conduct wasnot meant to modify the contents or prejudice the applicability of existing internationallaw instruments.

111 Lisbon Declaration on a Common and Comprehensive Security Model for Europe forthe 21st Century (1996): paragraph 8. Drafting evolution of that provision: REF.S/50/96of 26 November 1996 (United States), REF.S/61/96 of 27 November 1996 (GUAMcountries = Georgia, Ukraine, Azerbaijan, Moldova) and REF.S/101/96 of 30 November1996 (Moldova). Paragraph 8 of the Lisbon Declaration was restated in paragraph 5(d)of the Decision on Guidelines on OSCE Document-Charter on European Security(MC(6).Dec/5 of 19 December 1997.

112 FSC.DEC/4/98 of 8 July 1998.

COMMENTARY: SECTION V 51

SECTION V[CONFIRMATION OF THE IMPORTANCE OF THE PROCESS OF ARMS

CONTROL, DISARMAMENT AND CSBM]

Summary contents of Section V: Importance of a good faith implementationof arms control, disarmament and CSBM commitments (§ 15). Reaffirmationof the commitment to pursue arms control, disarmament and CSBM measuresin the OSCE area (§ 16).

A Code of Conduct addressing the politico-military aspects of security inthe OSCE normally had to include references to arms control, disarmamentand confidence- and security-building measures (CSBM). Section V, whichis supposed to fulfil that purpose, appears however as an empty box. It onlyoffers two provisions of a general nature which just affirm the importance ofgood faith implementation of arms control, disarmament and CSBM obligations(paragraph 15) and reaffirm the commitment to pursue arms control, disarma-ment and CSBM measures in the OSCE area (paragraph 16).

Although some of the Code of Conduct’s provisions are related to defenceexpenditures (paragraph 22) and defence policies and doctrines (paragraph 35),Section V does not mention the Vienna Document on CSBM.113 Still, the re-lation between the Code of Conduct’s provisions on the democratic control ofarmed forces and the Vienna Document’s provisions on defence planning isevident. As noted by the Head of the Swedish delegation at the opening of the1997 Annual Assessment Implementation Meeting, the Code of Conduct couldserve as a reference point for the formulation of defence policy because trans-parent information on the defence planning process, especially when comparableover the years, indicates the effectiveness of the democratic control of armedforces when that information is correctly transmitted.114 Accordingly, it couldhave been appropriate to incorporate the relevant provisions of the Code of

113 Or any other text developed in the framework of the politico-military dimension of theOSCE. Besides the Code of Conduct and the Vienna Document 1999 on CSBM, theparticipating states’ commitments in the politico-military dimension of the OSCE includethe 1993 Principles on Conventional Arms Transfers and the 1994 Principles on Non-Proliferation, the 1994 Global Exchange of Military Information regime and the Docu-ment on Small arms and light weapons (2000) – as well as some Forum for SecurityCooperation decisions concerning the ratification process of the 1993 Chemical WeaponsConvention and the issue of anti-personnel landmines.

114 REF.FSC/77/97 of 3 March 1977. See also FSC.VD/37/98 of 21 October 1998 (Swedishnon-paper containing amendment proposals to the Vienna Document).

52 PART I

Conduct in the Vienna Document, whose revision was under way.115 In thesame vein, Finland suggested inserting in the Vienna Document’s section ondefence planning provisions requiring the OSCE participating states to transmitinformation on the measures taken by each of them to implement the Code ofConduct and how the rights and duties of the armed forces personnel arereflected in their training programme.116 Such an arrangement would havehad the advantage of linking the implementation of the Code of Conduct tothat of the CSBM regime. For instance, inspection and evaluation reportssubmitted under the latter could have been helpful in assessing the degree ofimplementation of the former: the briefings held during inspections and evalu-ations could have included an obligation to report on the implementation ofthe Code of Conduct in the inspected facility. The inspected or evaluatedparticipating state would have to present the training programme of the per-sonnel and conscripts, thus revealing the impact of the Code of Conduct in thefield.117 Anyhow, those suggestions have not been retained in the 1999 versionof the Vienna Document.

The declaratory statements of Section V of the Code of Conduct, whichdo not even refer to the 1992 Treaty on Conventional Armed Force in Europe(CFE), the 1992 Concluding Act of the Negotiation on Personnel Strength ofConventional Armed Force in Europe (CFE-1A) and the 1992 Open SkiesTreaty, would have found a more natural place in Section IV where most ofthe security rights and obligations of the OSCE participating states are enunci-ated or reaffirmed.

Paragraph 15[Importance of a good faith implementation of arms control, disarmament and

CSBM commitments]The participating states will implement in good faith each of their commitments inthe field of arms control, disarmament and confidence- and security-building asan important element of their indivisible security.

115 FSC.VD/37/98 of 21 October 1998.116 FSC.DEL/36/97 of 23 September 1997.117 FSC.DEL/36/97 of 23 September 1997. See also FSC.AIAM/49/98 of 11 March (p. 21),

FSC.AIAM/50/98 of 26 March 1998 (p. 5) and FSC.AIAM/47/00 of 28 March 2000(p. 4). Turkey cautioned against mixing the implementation of a CSBM with a standard-setting measure document (FSC.AIAM/49/98 of 11 March 1998, p. 20). Russia expresseddoubts about formulating a verification mechanism and supported the voluntary principleof implementation (FSC.AIAM/49/98 of 11 March 1998, p. 21).

COMMENTARY: SECTION V 53

Paragraph 15 affirms in general terms the resolve of the OSCE participatingstates to implement in good faith their commitments in the field of arms control,disarmament and CSBM. As in the case of all other commitments undertakenin the framework of the OSCE (paragraph 1 of the Code of Conduct), theimplementation of arms control, disarmament and CSBM commitments is placedunder the auspices of “good faith” or, in other words, of Principle X of the1975 Helsinki Decalogue.

Given that it refers to “their commitments” and not to “their OSCE commit-ments”, paragraphs 15 covers all relevant OSCE politically-binding commitmentsas well as non-OSCE (legally or not) binding commitments of a universal orregional scope: CFE Treaty, CFE-1A Agreement, Open Skies Treaty, ChemicalWeapons Convention of 1993, etc.

Paragraph 15 also presents the implementation in good faith of commitmentsin the field of arms control, disarmament and CSBM as a prescription relatedto the principle of the indivisibility of security (“an important element of theirindivisible security”) which is stated in paragraph 3 of the Code of Conduct.The relevance of a commitment related to the full implementation of existingarms control and disarmament regimes “even in crisis situations”, suggestedin the “European Union plus” proposal118 did not get consensus. Likewise,the “European Union plus” states did not succeed in convincing the othergovernments that breaches of obligations under arms control and disarmamentagreements should be considered as “a source of concern for all” which necessi-tate an appropriate response – such as consultations in order “to avert or resolvedisputes (…) to avoid use of force”.119

Paragraph 16[Reaffirmation of the commitment to pursue arms control, disarmament and

CSBM measures in the OSCE area]With a view to enhancing security and stability in the CSCE area, the particip-ating states reaffirm their commitment to pursue arms control, disarmament andconfidence- and security-building measures.

118 CSCE/FSC/SC.21 of 30 June 1993, p. 7.119 CSCE/FSC/SC.21 of 30 June 1993, p. 7. A Turkish proposal of similar inspiration

suggesting that the degree of compliance with arms control and disarmament obligationsbe considered “as a concrete yardstick in the field of military-political conduct” (CSCE/FSC/SC.8 of 16 December 1992, article 8) was also not accepted.

54 PART I

The provision of paragraph 16 simply indicates the general resolve of theOSCE participating states “to pursue” arms control, disarmament and conf-idence- and security-building “measures”. It represents a confirmation, formu-lated in much less strong language, of a commitment undertaken by them inthe Helsinki Summit 1992 Declaration and the Helsinki Decisions 1992 to agive “new impetus” to the process of arms control, disarmament and confidence-and security-building as well as to security cooperation and conflict preven-tion.120 It does not provide, as suggested in the “European Union plus” pro-posal, for further developments in the specific fields of non-proliferation andarms transfers.121

SECTION VI[REAFFIRMATION OF COMMITMENTS TO COOPERATE FOR CONFLICT

PREVENTION AND CRISIS MANAGEMENT]

Summary contents of Section VI: Cooperation to counter economic/environ-mental and human dimension tensions conducive to possible conflicts (§ 17).Reaffirmation of the equal importance of cooperation at the various phasesof the conflict management cycle (§ 18). Cooperation for peaceful resolutionand humanitarian assistance support in armed conflicts (§ 19).

A Code of Conduct related to the politico-military aspects of security inthe OSCE had normally to reflect the issue of conflict prevention and crisismanagement. Section VI does so but in such general terms that it can be con-sidered, like Section V on arms control, disarmament and CSBM, an emptybox. Indeed, it consists of three provisions on cooperation to counter economic/environmental and human dimension tensions conducive to conflicts (paragraph17), on the equal importance of the various phases of the conflict managementcycle (paragraph 18), and on cooperation for the peaceful resolution and insupport of humanitarian assistance in armed conflicts (paragraph 19).

120 Second sentence of paragraph 22 of the Helsinki Summit Declaration 1992 and paragraph4 of Chapter V of the Helsinki Decisions 1992.

121 CSCE/FSC/SC.21 of 30 June 1993, pp. 8-9.

COMMENTARY: SECTION VI 55

Paragraph 17[Cooperation to counter economic/environmental and human dimension tensions

conducive to conflicts]The participating states commit themselves to cooperate, including through devel-opment of sound economic and environmental conditions, to counter tensions thatmay lead to conflict. The sources of such tensions include violations of humanrights and fundamental freedoms and of other commitments in the human di-mension; manifestations of aggressive nationalism, racism, chauvinism, xeno-phobia and anti-semitism also endanger peace and security.

The first sentence of paragraph 17 commits the OSCE participating statesto cooperate with the aim of preventing the development of potential conflictsby countering related tensions. The second sentence recognises that the sourcesof potential conflicts in the OSCE area are linked to economic and environ-mental factors and to violations of the human dimension’s commitments, withparticular emphasis on those related to human rights and to tolerance (aggressivenationalism, racism, chauvinism, xenophobia and anti-semitism) – an enumera-tion inspired from the 1992 Helsinki Summit Declaration.122 Given ChapterIII of the Helsinki Decisions 1992 and the practice developed by the OSCEthrough “Long-Term Missions”, the concept of “conflict” has to be understoodas referring to intra-state as well as inter-state conflicts, including armed con-flicts.123

Since it establishes a formal linkage between the politico-military dimensionof security (to which the Code of Conduct belongs) and the economic/environ-mental and the human dimensions, paragraph 17 is one of the rare cross-di-mensional provisions of the Code of Conduct dealing with inter-state relations.

122 “This is a time of promise but also a time of instability and insecurity. Economic decline,social tension, aggressive nationalism, intolerance, xenophobia and ethnic conflictthreaten stability in the CSCE area. Gross violations of CSCE commitments in the fieldof human rights and fundamental freedoms, including those related to national minorities,pose a special threat to the peaceful development of society, in particular in new demo-cracies” (paragraph 12 of the 1992 Helsinki Summit Declaration).

123 Chapter III of the Helsinki Decisions 1992, entitled “Early warning, conflict preventionand crisis management (including fact-finding and rapporteur missions and CSCEpeacekeeping), peaceful settlement of disputes”, clearly refer – as regards peacekeeping– to conflicts “within or among participating states” (paragraph 17).

56 PART I

Paragraph 18[Reaffirmation of the equal importance of cooperation at the various phases of

the conflict management cycle]The participating states stress the importance both of early identification ofpotential conflicts and of their joint efforts in the field of conflict prevention,crisis management and peaceful settlement of disputes.

While giving special emphasis to the identification of root causes of con-flicts, the general provision of paragraph 18 affirms the equal importance ofthe various phases of the conflict management cycle: “conflict prevention, crisismanagement and peaceful settlement of disputes”. Given Chapter III of theHelsinki Decisions 1992 and the practice developed by the OSCE through“Long-Term Missions”, the concept of “conflict” has to be understood asreferring to intra-state as well as inter-state conflicts, including armed con-flicts.124

The elements enumerated in paragraph 18 do not include either peace-building or peacekeeping.

The omission of peace-building is not surprising: the first OSCE post-conflict rehabilitation operation took place only in 1996 (two years after theCode of Conduct’s adoption) on the basis of the Dayton Framework Agreementon Peace in Bosnia and Herzegovina.

As to peacekeeping, the “European Union plus” and the Austro-Hungarianproposals did include provisions committing the participating states to cooperatewith peacekeeping operations of the United Nations and the OSCE.125

Although the OSCE has been empowered to undertake such operations since1992, no consensus could be achieved in this connection because the issue ofpeacekeeping (connected with that of NATO’s post-Cold War role) was asharply divisive one.126

124 Chapter III of the Helsinki Decisions 1992, entitled “Early warning, conflict preventionand crisis management (including fact-finding and rapporteur missions and CSCEpeacekeeping), peaceful settlement of disputes”, clearly refer – as regards peacekeeping– to conflicts “within or among participating states” (paragraph 17).

125 “European Union plus”: CSCE/FSC/SC.21 of 30 June 1993, p. 10; Austria and Hungary:CSCE/FSC/SC.22 of 15 September 1993, pp. 20-21;

126 Paragraphs 17 to 56 of Chapter III of the Helsinki Decisions 1992 – reconfirmed byparagraph 46 of the Istanbul Charter for European Security (1999) – empower the OSCEto conduct peacekeeping operations of its own and also to mandate other Europeanregional institutions to do so on its behalf. Up now (2002), the OSCE has never formallymade use of those provisions. Although hammered out in detail, a pan-European peace-

COMMENTARY: SECTION VI 57

Paragraph 19[Cooperation for peaceful resolution and humanitarian assistance support in

armed conflicts]In the event of armed conflict, they will seek to facilitate the effective cessation ofhostilities and seek to create conditions favourable to the political solution ofconflict. They will cooperate in support of humanitarian assistance to alleviatesuffering among the civilian population, including facilitating the movement ofpersonnel and resources dedicated to such tasks.

Paragraph 19 concerns the cooperation of the OSCE participating statesin armed conflicts – whether of an intra-state or inter-state character, as signalledin the commentary of paragraphs 17 and 18.

The first sentence commits the OSCE participating states in general andmild terms (as reflected by the verb “to seek”) to undertake efforts such as goodoffices, facilitation, mediation and/ conciliation with a view to achieving theeffective ending of armed hostilities and establishment of a framework for apeaceful political settlement.

In the spirit of a provision embodied in the 1992 Helsinki Summit Declara-tion, the second sentence commits the OSCE participating states to cooperate“in support of humanitarian assistance” (but not to provide such humanitarianassistance as had been suggested by the “European Union plus” states) toalleviate suffering among the civilian population – inter alia by facilitating thefree circulation of dedicated personnel and resources.127

keeping operation in Nagorno-Karabakh did not materialise. However, the OSCEcurrently performs such activities as ceasefire monitoring, police activities, post-conflictrehabilitation, etc. which are in effect peacekeeping-related functions. The KosovoVerification Mission (1998-1999) was indeed a peacekeeping operation – without thename. The same remark applies to the field Mission established in 1999 as an integralpart of the United Nations Interim Mission in Kosovo (UNMIK).

127 “European Union plus” proposal: CSCE/FSC/SC.21 of 30 June 1993, p. 10. In paragraph14 of the 1992 Helsinki Summit Declaration, the OSCE participating states recognisedthat “in times of conflict the fulfilment of basic human needs is most at risk” andcommitted themselves “to strive to relieve suffering by humanitarian ceasefires and tofacilitate the delivery of assistance under international supervision, including its safepassage”.

58 PART I

SECTION VII[DEMOCRATIC CONTROL OF ARMED FORCES]

Summary contents of Section VII: Rationale for the democratic control of armedforces (§ 20). Primacy of the constitutionally established authorities vested withdemocratic legitimacy over military power (§ 21). Legislative approval of, aswell as restraint in, transparency of and public access to military defenceexpenditures (§ 22). Political neutrality of armed forces and respect of civilrights of their individual members (§ 23). Safeguards against military incidentsdue to accident or error (§ 24). Inadmissibility of forces that are not account-able to or controlled by their constitutionally established authorities (§ 25).Prohibition of acquisition by paramilitary forces of combat mission capabilitiesin excess of those for which they were established (§ 26). Consistency withhuman rights of recruitment or call-up of military, paramilitary and securityforces (§ 27). Rights and duties of armed forces personnel, including possibilityof exemptions from or alternatives to military service (§ 28). Promotion of theknowledge of international humanitarian law at national level and reflectionof its commitments in military training programmes and regulations (§ 29).Instruction of armed forces personnel in international humanitarian law,including awareness of individual accountability at domestic and internationallevel (§ 30). Individual accountability of commanders and rank and file service-men of armed forces under national and international law (§ 31). Exercise oftheir human rights by the personnel of military, paramilitary and security forces(§ 32). Legal and administrative national procedures for the protection of therights of all forces personnel (§ 33).

Section VII of the Code of Conduct is devoted, together with Section VIII,to the civilian democratic control of armed forces – or, in more updated terms,to what is currently referred to as the armed element of the “security sec-tor”.128 The issue was not totally novel at the OSCE:

128 As underscored by Theodor H. Winkler (Managing Change. The Reform and DemocraticControl of the Security Sector and International Order. Geneva, Centre for the Demo-cratic Control of Armed Forces, “Occasional paper” No 1, 2002, p. 5), the concept ofa “security sector” had emerged by 1997 in British academic circles. For an analysisof the concept, see the following working papers issued by the Geneva Centre for theDemocratic Control of Armed Forces in 2002 by Timothy Edmunds (Security Reform.Concepts and Implementation), Hans Born (Democratic Oversight of the Security Sector.What Does it Mean?) and Wilhelm Germann (Evaluation of Security Sector ReformCriteria of Success. Practical Needs and Methodological Problems).

COMMENTARY: SECTION VII 59

a) In the Copenhagen Document on the Human Dimension of 29 July 1990,the OSCE participating states recognised that the rule of law required, amongmany other elements, that “military forces and the police (…) be under thecontrol of, and accountable to, the civil authorities” (paragraph 5.6).

b) In the Moscow Document on the Human Dimension of 3 October 1991,the OSCE participating states adopted some general obligations as regards theirmilitary and paramilitary forces, internal security and intelligence services andthe police activities. They committed themselves to ensure that those forces,services and activities are subject to the effective direction and control of theappropriate civil authorities (paragraph 25.1), to maintain (and, where necessary,strengthen) executive control over the use of those forces, services and activities(paragraph 25.2) and to take appropriate steps to create (wherever they do notalready exist) and maintain effective legislative supervision all such forces,services and activities (paragraph 25.3). Those obligations were formulated onthe basis of a proposal concerning “civilian control over military and securityforces”, jointly tabled by Hungary and the United States; they reflected all ofthe provisions of the proposal with the only exception of a prescription for-bidding the OSCE participating states “to create or permit such forces, servicesor activities to function beyond the reach of the executive”.129

Section VII of the Code of Conduct represents an elaboration and develop-ment of the Moscow Document’s commitments. Given the diversity of nationaltraditions and practices in the OSCE area, it does not propose a specific modelfor either an “objective” or a “subjective type” of democratic control of armedforces.130 Paragraphs 20 to 33, supplemented by paragraphs 34 to 37 which

129 CSCE/CHDM.43 of 26 September 1991. The text of the proposal, which was co-sponsored by Albania (CSCE/CHDM.43/Add. 1 of 30 September 1991), is reproducedas Annex 1 in the present Commentary.

130 The standard distinction between “objective” and “subjective” civilian control over themilitary was proposed by Samuel P. Huntington in The Soldier and the State. The Theoryand Politics of Civil-Military Relations. Cambridge, Belknap Press of Harvard UniversityPress, New York, 1957, xiii-534 p. According to Hans Born (Democratic Oversightof the Security Sector. What Does it Mean?, op. cit., p. 6), the objective control model(which implies a highly-professional military establishment and clear-cut separationbetween political and military decision-making) functions in the United States and manyother Western countries, while the subjective control model (where democratic politicalloyalty prevails over professionalism) operates for instance in Switzerland. For anoverview of the existing literature see Hans Born’s contribution (“Democratic Controlof Armed Forces. Relevance, Issues and Research Agenda”) in Handbook of the Sociol-ogy of the Military. Edited by Giuseppe Caforio. New York, Kluwer Academic, 2003,pp. 151-165.

60 PART I

form Section VIII, only spell out the general basic features of such a regime– namely the primacy of democratic constitutional civilian power over militarypower (paragraphs 21 to 26), the subjection of armed forces to the norms andprescriptions of international humanitarian law (paragraphs 29, 30, 31, 34 and35), the respect of the human rights and fundamental freedoms of the armedforces personnel (paragraphs 23, 27, 28, 32, 33) and the regulation of the useof armed forces for internal security purposes (paragraph 36 and 37).

Beyond the prevention of the unconstitutional use of armed forces for bothinternal and external purposes, the aim of Sections VII and VIII taken as awhole is to promote a “conscience” of the rule of law, human rights and inter-national humanitarian law in the military establishments of the OSCE participat-ing states. Outlawing the practices of the Nazi and Soviet regimes to use armedforces to dominate other European states and to intimidate their own populations(as well as the kind of abuses perpetrated in the then ongoing Yugoslav conflict)directly motivated the drafting of these portions of the Code of Conduct. Theprovisions of Sections VII and VIII reflected the quintessence of the lessonsdrawn from the experience of the Western democracies with the intention onpassing them on to the new democratic regimes emerging in the former Sovietand Balkan geopolitical space.131

Paragraph 20[Rationale for the democratic control of armed forces]

The participating states consider the democratic political control of military,paramilitary and internal security forces as well as of intelligence services andthe police to be an indispensable element of stability and security. They will fur-ther the integration of their armed forces with civil society as an important ex-pression of democracy.

This paragraph introduces the concept of “democratic political control ofarmed forces” to which the 1991 Moscow Document did not explicitly refer.It also justifies its rationale and enumerates the categories concerned by it.Neither paragraph 20, nor any other in the Code of Conduct, does howeveroffer a definition of the concept as such.

The democratic political control of armed forces is considered as includingthe same five categories that were mentioned in the 1991 Moscow Document:

131 Jonathan Dean: “The OSCE Code of Conduct on Politico-Military Aspects of Security:A Good Idea, Imperfectly Executed, Weakly Followed Up”, OSCE Yearbook, Volume1-2, 1995-1996, pp. 291 and 295.


military forces, paramilitary forces, internal security forces, as well as intelli-gence services and the police – or, in other terms, all of the essential elementsof the security sector excepting border guards.132

In this enumeration, the first three categories are intentionally separatedfrom the last two by the expression “as well as”. Indeed, paragraph 20 fulfilsthe purpose of a mini-preamble. It is the only one which makes reference toall five categories. The following paragraphs of Section VII, which are of anoperative nature, mention either the first three categories simultaneously (para-graphs 21, 27, 32 and first sentence of paragraphs 20) or just the “armed forces”(paragraphs 22, 23, 28, 30, 31 and second sentence of paragraph 20).133 Formost of the OSCE participating states, the categories of intelligence servicesand the police were too sensitive. Therefore, there was no consensus for men-tioning them elsewhere than in an introductory paragraph of a general declarat-ory character. Given the diversity of national practices and historical traditionsin the OSCE area, the Code of Conduct does not provide in paragraph 20 (orelsewhere) a definition for any of the five categories. In sum:

– When the expression “armed forces” is used in the Code of Conduct, itis reasonable to assume that it only refers to the regular forces of the army,and not to all of the five categories.134

– The category of “paramilitary forces” is addressed specifically in para-graph 26 and, somewhat implicitly, in the oblique provision of paragraph 25referring to “forces that are not accountable to or controlled by their constitu-tionally established authorities” (irregular forces).

132 However, since the adoption of the Code of Conduct, the OSCE’s Office for DemocraticInstitutions and Human Rights (ODIHR) has launched a number of democratisationprogrammes providing for training in human rights for the border guards of a numberof participating states. On the issue of border guards, see Alice Hills: ConsolidatingDemocracy. Professionalism, Democratic Principles and Border Services (14 p.) andBorder Control Services and Security Sector Reform. (32 p.). Geneva, Geneva Centrefor the Democratic Control of Armed Forces, 2002, Working Papers No 27 and No 37.

133 In addition, the vague notion of “forces” is used in paragraphs 25 and 33. In SectionVIII (paragraphs 34 to 37), reference is only made to “armed forces”.

134 In its proposals on the “Democratic Control of Armed Forces and their Use”, Hungaryhowever used the expression “armed forces” as covering military and paramilitary forces,as well as internal security, intelligence services and the police (CSCE/FSC/SC.25 of23 February 1994).

62 PART I

– The categories of “internal security forces”, “intelligence services” andthe “police” do not appear outside the boundaries of paragraph 20.135 How-ever, paragraph 36 interestingly refers to “armed forces” entrusted with “internalsecurity missions”. It is also worth mentioning here the existence of some (non-legal) norms framed within the United Nations and the Council of Europeconcerning these same three categories.

At universal level, the General Assembly of the United Nations adopteda United Nations Code of Conduct for Law Enforcement Officials (1979) asa recommendation for governments to use within the framework of nationallegislation or practice as a body of principles for observance by law enforcementofficials. This instrument prescribes to all officers of the law who exercisemilitary as well as civilian police powers to “respect and protect human dignityand maintain and uphold human rights of all persons” (article 2) while empower-ing them to use force “only when strictly necessary and to the extent requiredfor the performance of their duty (article 3)”.136

As to the Council of Europe, its Parliamentary Assembly adopted a“Declaration on the Police” (1979) laying down guidelines for the behaviourof police officers in case of war and other emergencies, including in the eventof occupation by a foreign power. All of the Declaration’s provisions (exceptthose related to occupation) concern “individuals and organisations, includingsuch bodies as secret services, military police forces, armed forces or militiasperforming police duties, that are responsible for enforcing the law, investigating

135 On these categories, see Geneva Centre for the Democratic Control of Armed Forces:Intelligence Services and Democracy. Geneva, Geneva Centre for the Democratic Controlof Armed Forces (DCAF Working Papers No 13), Hans Born: Democratic and Parlia-mentary Oversight of the Intelligence Services. Best practices and procedures. Geneva,Geneva Centre for the Democratic Control of Armed Forces, 2002, 21 p. (DCAFWorking Papers No 20) and James Sheptycki: Accountability Across the Policing Field.Towards a General Cartography of Accountability for Post-Modern Policing, Geneva,Geneva Centre for the Democratic Control of Armed Forces, 2002, 25 p. (DCAFWorking Papers No 35).

136 Resolution 34/169 adopted by the United Nations General Assembly on 17 December1979. According to the commentary appended to that instrument, the definition of “lawenforcement officials” includes all officers of the law, whether appointed or elected,who exercise police powers, especially the powers of arrest or detention and, in countrieswhere police powers are exercised by military uniformed/non-uniformed authorities orby state security forces, all officers of such services.


offences and maintaining public order and state security”.137 Subsequently,a “European Code of Police Ethics” was drafted under the aegis of the Councilof Europe’s Committee of Ministers and submitted, in 2001, for opinion to theParliamentary Assembly. The expected Code of Police Ethics is supposed tosupersede the 1979 Declaration.138

In 1981-1982, some MPs raised the idea of a “European Code of profes-sional ethics for the armed forces”; however, the Parliamentary Assembly didnot follow suit.139 In the next decade, the Parliamentary Assembly consideredthe issue of intelligence services. It therefore adopted Recommendation 1402(1999) on “Control of internal security services in Council of Europe memberstates” providing guidelines for ensuring an equitable balance between the rightof a democratic society to national security and the rights of the individual.The text requested the Committee of Ministers to elaborate a framework conven-tion regulating the way internal security services should be organised, conducttheir operations and be effectively controlled – which means that the concernedservices should be organised on strictly legal bases and preferably not withina military structure, remain under the effective (a priori and ex post facto)control of the executive, legislative and judiciary branches, be fundedexclusively through the state budget and in conformity with the national parlia-ment’s current procedures, perform in compliance with the obligations of theEuropean Convention on human rights and not be used as a political tool tooppress the opposition, national minorities and other groups or take part in the

137 The Parliamentary Assembly adopted Resolution 690 (and Recommendation 858) onthe “Declaration on the Police” on 8 May 1979. See also Doc. 4212 of 15 January 1979(Report by John Watkinson), Doc. 5523 of 29 January 1986 (written question to theCommittee of Ministers) and Doc. 5554 of 21 April 1986 (Committee of Ministers’reply). At an earlier stage, in 1970, the Parliamentary Assembly adopted Recommenda-tion 601 concerning the application of the 4th Geneva Convention (1949) to policeofficials.

138 Council of Europe’s Parliamentary Assembly: Doc. 8923 of 15 January 2001 (Drafttext submitted to the opinion of the Parliamentary Assembly) and Doc. 8994 of 9 Mach2001 (Report by Kevin McNamara containing the Parliamentary Assembly’s reply).

139 Doc. 4719 of 12 May 1981 (Motion for a Recommendation) and Doc. 4963 of 28September 1982 (Motion for an Order). On 29 September 1982, the ParliamentaryAssembly adopted Order 411 (1982) in which it deplored the decision of its Bureauto take no action on the matter and instructed the legal Affairs Committee to considerthe possibility of drafting a European Code of professional ethics for the armed forces.

64 PART I

fight against organised crime.140 The Committee of Ministers rejected theidea of a framework convention. However, it decided to consider setting upa new committee of experts (“Group of Specialists for Internal Security ser-vices”) with a view to preparing a report and, if appropriate, putting forwardrelevant recommendations.141

Through paragraph 20, the OSCE participating states recognise that thedemocratic political control of the five above-mentioned categories of armedforces forms “an indispensable element of stability and security” (first sentence)and that the further integration of those armed forces with civil society consti-tutes “an important expression of democracy” (second sentence).142 The keywords stability, security and democracy represent the basic justifications fora democratic political control of armed forces. Indeed, democratic regimescontribute to international stability and security better than any others becauseof their normally peaceful and reasonably predictable behaviour. As democraticcontrol of armed forces requires transparency, this certainly allows neighbour’ssuspicions to be reduced or international tensions defused. Anyhow, by estab-lishing a direct link between armed forces and democracy, paragraph 20 reflectsthe cross-dimensional nature of the Code of Conduct, which is a politico-militarynormative instrument including large portions (Sections VII and VIII) pertainingto the human dimension.

The second sentence of paragraph 20 (“they will further the integration oftheir armed forces with civil society…”) seems to imply that a civil societyalready functions in all of the OSCE participating states – which was certainlynot the case in 1994 and, to a large extent, even today (2004).

140 The Parliamentary Assembly adopted Recommendation 1402 on “Control of internalsecurity services in Council of Europe member states” on 26 April 1999. See also OrderNo 550 (1999), Doc. 7104 of 13 June 1994 (motion for a resolution) and Doc. 8301of 23 March 1999 (Report by György Frunda ).

141 Parliamentary Assembly of the Council of Europe: Doc. 8907 of 14 December 2000(Reply from the Committee of Ministers to Recommendation 1402).

142 Language suggested by Austria and Hungary that the democratic control of armed forcescontributes to stability, security and democracy “in the CSCE area as a whole, withinregions and within states” (CSCE/FSC/SC.22 of 15 September 1993, p. 17 and CSCE/FSC/SC.25 of 23 February 1994, p. 1) was not retained.


Paragraph 21[Primacy of the constitutionally established authorities vested with democratic

legitimacy over military power]Each participating state will at all times provide for and maintain effective guid-ance to and control of its military, paramilitary and security forces by constitu-tionally established authorities vested with democratic legitimacy. Each participat-ing state will provide controls to ensure that such authorities fulfil their constitu-tional and legal responsibilities. They will clearly define the roles and missions ofsuch forces and their obligation to act solely within the constitutional framework.

The present paragraph affirms what the OSCE participating states considerto be the essence of the democratic control of armed forces – the primacy of“constitutionally established authorities vested with democratic legitimacy” overmilitary power.143 The responsibility of “constitutionally established author-ities” represents a necessary but not a sufficient condition: such authorities mustalso be “vested with democratic legitimacy”. The democratic political controlof the armed forces has therefore to be executed, on the basis of the Constitu-tion, by constitutionally established and democratic organs sanctioned by thedemocratic will of the people. All this means that the authorities concernedmust operate in a system of true separation of powers and in the broad contextof the rule of law. Except for paragraph 22 which deals with the legislativeapproval of defence expenditures, all the provisions of Sections VII and VIIIof the Code of Conduct concern (at least implicitly) the executive branch ofgovernment and do not make any reference to the judicial branch.144

The first sentence of paragraph 21 enunciates in general terms the funda-mental requirement that each of the OSCE participating states’ constitutionallyestablished authorities vested with democratic legitimacy must provide for andmaintain effective guidance of the military establishment at all times: theexpression “to provide for and maintain” means that such guidance and controlmust be not only achieved, but also sustained. “At all times” refers to peacetimeand wartime. Noticeably, only the first three categories of armed forces listed

143 This is in line with paragraph 25.1 of the Moscow Document on the Human dimension(1991) in which the OSCE participating states acknowledged the necessity of subjectingtheir military forces, services and activities “to the effective direction and control ofthe appropriate civil authorities” (paragraph 25.1).

144 Likewise, the Moscow Document on the Human Dimension (1991) prescribed that theOSCE participating states ensure only “executive control” (§ 25.2) and “legislativesupervision” over the use of military forces, services and activities (paragraph 25.3).

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in paragraph 20 (military, paramilitary and security forces) are here con-cerned.145

The second sentence commits each of the OSCE participating states to takemeasures to guarantee that the constitutionally established authorities vestedwith democratic legitimacy do fulfil their responsibilities. At first sight, it justseems to restate, with no useful purpose, the substance of the first sentence.Actually it means that the OSCE participating states are committed to providecontrol systems allowing the democratic constitutional authorities not to abdicatetheir responsibility to control the military establishment.

The third sentence prescribes that the constitutionally established authoritiesvested with democratic legitimacy clearly define the role, missions and obliga-tions of the above-mentioned categories of armed forces in order to act at alltimes only within the rule of law and being legally accountable for their actions.

In short, paragraph 21 rules out any possibility for the military establishmentof the OSCE participating states to form, so to speak, a state within the state.However, it fails to establish, following the “European Union plus” proposal,that if the armed forces usurp political control in any participating state, theother governments will urgently consider appropriate action in the frameworkof the OSCE.146 In the course of the drafting process, the negotiators con-sidered that such “appropriate action” could include the non-recognition of thelegitimacy of any usurper government and the restoration of democratic constitu-tional order.147 In this connection, it is worth recalling that in the 1991 Mos-cow Document, adopted in the aftermath of the failed coup against MikhailGorbachev, the OSCE participating states condemned “unreservedly forceswhich seek to take power from a representative government of a participatingstate against the will of the people as expressed in free and fair elections andcontrary to the justly established constitutional order”; accordingly, they com-

145 Austria and Hungary suggested, in vain, that intelligence services and the police be addedto the list (CSCE/FSC/SC.22 of 15 September 1993, p. 17).

146 CSCE/FSC/SC.21 of 30 June 1993, p. 12 (author’s italics). The Austro-Hungarianproposal also contained a provision stating that if armed forces usurp political controlin any participating state, the other participating states will consider it as “a source ofconcern” (CSCE/FSC/SC.22 of 15 September 1993, p. 17).

147 Article 3 of the Turkish proposal (CSCE/FSC/SC.8 of 16 December 1992), paragraph2.13 of the Hungarian proposal (CSCE/FSC/SC.25 of 23 February 1994), paragraph(cc) of DOC.337 (Coordinator’s Perception of 3 June 1994), paragraph 16 of DOC.551of 22 July 1994 (Coordinator’s 4th revised version of the Code of Conduct), paragraph26.3 of the Coordinator’s Draft Perception of 11 November 1994 and paragraph 26.3of the Coordinator’s Working paper of 15 November 1994.


mitted themselves to “support vigorously”, in case of overthrow or attemptedoverthrow of a legitimately elected government of a participating state byundemocratic means, “the legitimate organs of that state upholding human rights,democracy and the rule of law…”.148

Under a decision taken in July 1998 by the Forum for Security Cooperation,the OSCE participating states established a procedure providing for an exchangeof information on the Code of Conduct’s implementation through a standardquestionnaire comprising 10 items.149 Two elements of the questionnaire referto paragraph 21: item No 4 (which also covers paragraph 20) requires informa-tion on “constitutionally established authorities and procedures to ensure effect-ive democratic control of armed forces, paramilitary forces, internal securityforces, intelligence services and the police” and item No 5 on the “role andmissions of military, paramilitary forces and internal security forces as wellas controls to ensure that they act solely within the constitutional framework”.

Paragraph 22[Legislative approval of, as well as restraint in, transparency of and public access

to military defence expenditures]Each participating state will provide for its legislative approval of defence ex-penditures. Each participating state will, with due regard to national securityrequirements, exercise restraint in its military expenditures and provide for trans-parency and public access to information related to the armed forces.

Paragraph 22, which refers to the global category of “armed forces” (theregular forces of the army) deals with defence and military expenditures.

In line with paragraph 25.3 of the Moscow Document (1991) which pre-scribes “effective legislative supervision” over armed forces, the first sentencecommits each of the OSCE participating states to provide for legislative ap-proval of its defence expenditures – a normal requirement in any effectiverepresentative democracy.150 A Parliament issued from free and fair elections

148 Moscow Document (1991): paragraphs 17.1 and 17.2.149 FSC.DEC/4/98 of 8 July 1998.150 Besides, paragraph 13 of the Code commits each OSCE participating state to “determine

its military capabilities on the basis of national democratic procedures …”.

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represents indeed, due also to its budgetary competences, a key instrument forthe control and accountability of the armed forces.151

The second sentence contains two different kinds of commitments. On theone hand, each OSCE participating state is committed to exercising restraintin its military expenditures, “with due regard to national security” – an ex-pression introducing a subjective limitative element. During the drafting process,Poland suggested a stronger commitment prescribing that governments“approach with restraint their defence needs in planning military expenditures,arms procurement and infrastructure upgrading and in other aspects of themaintenance and development of their military potential”.152 Anyhow, inestablished parliamentarian democracies, this is often a quasi routine conse-quence of budgetary deliberations. This provision on restraint has also to beappreciated against the background of paragraph 12 of the Code of Conductunder which each participating state must “maintain only such military capabil-ities as are commensurate with individual or collective legitimate security needs,taking into account its obligations under international law”.

On the other hand, each OSCE participating state is committed to providefor transparency of and public access to information related to its armed forces.The relevance of transparency to information on military budgets does needto be elaborated: in mature democracies, critical media and the pressure ofpublic opinion represent a major element of accountability and control. Inexplic-ably, paragraph 22 does not make any reference whatsoever to the detailedcommitments of the OSCE’s Vienna regime on CSBM related to “DefencePlanning”.153

Under a decision taken in July 1998 by the Forum for Security Cooperation,the OSCE participating states established a procedure providing for an exchangeof information on the Code of Conduct’s implementation through a standardquestionnaire comprising 10 items.154 Item No 2 is related to “Nationalplanning and decision making-process for the determination of the militaryposture, including (a) the role of Parliament and ministries and (b) public accessto information related to armed forces”; it concerns paragraph 13 as well.

151 David Greenwood: Transparency in Defence Budgets and Budgeting. Geneva, GenevaCentre for the Democratic Control of Armed Forces, 2002, 13 p. (DCAF Working Papers,No 73).

152 CSCE/FSC/SC.5/Rev.1 of 18 November 1992, p. 3.153 The commitments related to defence planning are embodied in paragraphs 15 to 15.10

of the latest version of the Vienna Document on CSBM (1999).154 FSC.DEC/4/98 of 8 July 1998.


Paragraph 23[Political neutrality of armed forces and civil rights of their individual members]

Each participating state, while providing for the individual service member’sexercise of his or her civil rights, will ensure that its armed forces as such arepolitically neutral.

Paragraph 23, which refers to the global category of “armed forces” (theregular forces of the army), confirms that in a rule of law regime, armed forcesare just an instrument of the politico-civil power. Hence the provision affirmingone of the most fundamental elements of the primacy of the civilian power overthe military: the political neutrality of the military establishment in nationallife. It does not however specify, as suggested in all the official basic proposals,that armed forces must not serve the interests of “particular groupings” or“ideological systems”.155 However, and as emphasised by the Greek delegationat the opening of the 3rd Follow-up conference on the Code of Conduct, only“those who have experienced the oppression of a dictatorship or the horrorsof the war” can appreciate in full measure the importance of having the armedforces remain neutral.156

Regrettably, paragraph 23 fails to establish, following the “European Unionplus” proposal, that if the armed forces usurp political control in any participat-ing state, the other governments will urgently consider appropriate action inthe framework of the OSCE.157 In the course of the drafting process, the nego-tiators considered that such “appropriate action” could include the non-recog-nition of the legitimacy of any usurper government and the restoration of

155 CSCE/FSC/SC.5/Rev.1 of 18 November 1992, p. 3 (Poland), CSCE/FSC/SC.21 of 30June 1993, p. 11 (“European Union plus” proposal), CSCE/FSC/SC.22 of 15 September1993, p. 17 (Austria and Hungary) and CSCE/FSC/SC.25 of 23 February 1994, p. 2(Hungary). Paragraph 15.5 of the Coordinator’s 4th revised and still bracketed versionof the Code of Conduct also suggested that each participating state will, at all times,provide for “means ensuring that armed forces do not serve the interests of politicalgroups or others seeking power in order to impose a particular programme or ideologicalsystem contrary to the democratic will of the people and not act on their own behalfto usurp power for similar purposes” (DOC.551 of 22 July 1994).

156 FSC.DEL/212/99 of 29 June 1999.157 CSCE/FSC/SC.21 of 30 June 1993, p. 12 (author’s italics). The Austro-Hungarian

proposal contained also a provision stating that if armed forces usurp political controlin any participating state, the other participating states will consider it “a source ofconcern” (CSCE/FSC/SC.22 of 15 September 1993, p. 17).

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democratic constitutional order.158 In this connection, it is worth recallingthat in the 1991 Moscow Document, adopted in the aftermath of the failed coupagainst Mikhail Gorbachev, the OSCE participating states condemned “un-reservedly forces which seek to take power from a representative governmentof a participating state against the will of the people as expressed in free andfair elections and contrary to the justly established constitutional order”; accord-ingly, they committed themselves to “support vigorously”, in case of overthrowor attempted overthrow of a legitimately elected government of a participatingstate by undemocratic means, “the legitimate organs of that state upholdinghuman rights, democracy and the rule of law…”.159

While unequivocally implying that the armed forces “as such” (that is tosay the military as a collective entity) cannot pretend to be above the law,paragraph 23 also recalls that individual servicemen are citizens and, therefore,entitled to the exercise of civil rights. Separate provisions of the Code ofConduct prescribe that each participating state ensure that its military, para-military and security forces personnel enjoy and exercise their human rightsand fundamental freedoms as reflected in CSCE documents and internationallaw (paragraph 32), including at the level of recruitment or call-up (paragraph27).160 Other provisions commit the OSCE participating states to reflect intheir laws or relevant documents the rights – and also duties – of armed forcespersonnel (paragraph 28) as well as to provide appropriate legal and admin-istrative procedures to protect the rights of the latter (paragraph 33).

Paragraph 24[Safeguards against military incidents due to accident or error]

Each participating state will provide and maintain measures to guard againstaccidental or unauthorised use of military means.

158 Article 3 of the Turkish proposal (CSCE/FSC/SC.8 of 16 December 1992), paragraph2.13 of the Hungarian proposal (CSCE/FSC/SC.25 of 23 February 1994), paragraph(cc) of DOC.337 (Coordinator’s Perception of 3 June 1994), paragraph 16 of DOC.551(Coordinator’s 4th revised version of the Code of Conduct), paragraph 26.3 of theCoordinator’s Draft Perception of 11 November 1994 and paragraph 26.3 of the Co-ordinator’s Working paper of 15 November 1994.

159 Moscow Document on the Human dimension (1991): paragraphs 17.1 and 17.2.160 In the same spirit, each OSCE participating state is committed to ensure that its armed

forces are “commanded, manned, trained an equipped in ways that are consistent withthe provisions of international law…” (paragraph 34 of the Code of Conduct).


Paragraph 24 concerns incidents of a military nature due to accident or error.It commits each OSCE participating state to elaborate (undefined) “measures”against an accidental or unauthorised use of (equally undefined) “militarymeans” taking place within its jurisdiction; the phrase “to provide for andmaintain” requires that such measures be not only taken, but also sustained.

At the OSCE, the issue of “accidental use of military means” was not anunfamiliar one. The 1990 Vienna regime on CSBM addressed it under theheading of “cooperation as regards hazardous incidents of a military nature”.In its latest version (1999), the Vienna Document on CSBM commits the OSCEparticipating states to cooperate “by reporting and clarifying hazardous incidentsof a military nature within the zone of application for CSBMs in order toprevent possible misunderstandings and mitigate the effect on another particip-ating state”. The government whose military forces is involved in an incidentof that type must “provide the information available to other participating statesin an expeditious manner”, being also understood that any participating stateaffected by such an incident may directly request clarification as appropri-ate.161 Inexplicably, paragraph 24 does not make any reference whatsoeverto the Vienna Document on CSBM.

The issue of an “unauthorised use of military means” represents a differentaspect of the problem. Indeed, an incident of a military nature could be theresult of political dysfunction or deliberate error. In both cases, it would meanthat the state’s monopoly on “the legitimate use of violence”, inter alia throughmilitary means, is defective: hence the relevance of each OSCE participatingstate providing and maintaining appropriate measures, in conformity withparagraph 21 of the Code of Conduct which prescribes effective guidance toand control of armed forces at all times and establishes the obligation of thosearmed forces to act solely within the constitutional framework.

Paragraph 25[Inadmissibility of forces that are not accountable to or controlled by their consti-

tutionally established authorities]The participating states will not tolerate or support forces that are not account-able to or controlled by their constitutionally established authorities. If a partici-pating state is unable to exercise its authority over such forces, it may seek con-sultations within the CSCE to consider steps to be taken.

161 Vienna Document 1999 on CSBM: paragraphs 17 and 17.2.

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Paragraph 25 was supposed to address the issue of “irregular armed forces”.In this connection, the “European Union plus” text proposed to commit eachOSCE participating state to refrain from encouraging, supporting, aiding orprotecting irregular forces using violence on its own territory, as well as fromtraining, arming, equipping, financing, supplying or otherwise encouraging,supporting and aiding irregular forces using violence on the territory of anotherparticipating state”.162

Unproductive discussions during which some delegations attempted toestablish a distinction between “legal” and “illegal” irregular armed forcescompelled the negotiators to drop the concept of “irregular armed forces” andmake oblique reference to “forces that are not accountable to or controlled bytheir constitutionally established authorities”.

In conformity with the basic prescription of paragraph 21 of the Code ofConduct, the first sentence of paragraph 25 stipulates that such forces must notbe “tolerated” (within a participating state) or “supported” (outside a particip-ating state).163

The second sentence envisages the case where, contrary to the fundamentalrequirement of paragraph 21, a participating state is not able to exercise itsauthority on forces of that kind. In such a case, it offers to the concernedgovernment just the faculty to “seek consultations” with the other participatingstates and only “to consider” what steps could be taken to redress the situation.

Paragraph 26[Prohibition of acquisition by paramilitary forces of combat mission capabilities

in excess of those for which they were established]Each participating state will ensure that in accordance with its international com-mitments its paramilitary forces refrain from the acquisition of combat missioncapabilities in excess of those for which they were established.

162 CSCE/FSC/SC.21 of 30 June 1993, p. 13. Similar provisions were also included in theAustro-Hungarian draft (CSCE/FSC/SC.22 of 15 September 1993, p. 17) and theHungarian draft (CSCE/FSC/SC.25 of 23 February 1994, paragraph 2.9).

163 During the drafting process, stronger formulations prohibiting the organisation of anyirregular force that is not accountable to constitutional authority and stressing that“international law cannot limit the liability or responsibility of participating states orindividuals acting as members of irregular forces for illegal acts committed underinternational or national law” were discussed: see paragraphs (kk) and (ll) of DOC. 337(Coordinator’s Perception of 3 June 1994).


Paragraph 26 offers the Code of Conduct’s only provision specificallydedicated to paramilitary forces.

During the drafting process, Poland proposed in vain a commitment underwhich “each participating state will refrain from allowing paramilitaryorganisations to be established or to serve the particular political aims of agrouping or organisation or to gain or maintain political power”. It also sug-gested that “the participating states will not use paramilitary organisations tocircumvent limitations concerning the use and size of their armed forces”.164

Because of Russian objections, the final compromise embodied in paragraph26 does not refer to the general problem of circumvention, but just to a specificaspect of it: “acquisition of combat mission capabilities in excess of those forwhich [paramilitary forces] were established”. In addition, the expression “inaccordance with [the participating states] international commitments” introducesan unhappy escape qualification.

The issue of paramilitary forces is a sensitive one. So far, the OSCE particip-ating states have not been able to agree, as suggested during the 2nd Follow-upConference on the Code of Conduct, on the possible “inclusion of paramilitaryforces in the information exchange in order to keep track of their integrationinto the system of parliamentary control”.165

Paragraph 27[Consistency with human rights of recruitment or call-up of armed (military,

paramilitary and security) forces]Each participating state will ensure that the recruitment or call-up of personnelfor service in its military, paramilitary and security forces is consistent with itsobligations and commitments in respect of human rights and fundamentalfreedoms.

Paragraph 27 refers to the first three categories of armed forces listed inparagraph 20: military, paramilitary and security forces.

In line with other provisions of the Code of Conduct, which stress thatservicemen are, as citizens, entitled to exercise their civil rights (paragraph 23)and overall human rights and fundamental freedoms (paragraph 32), the presentparagraph prescribes that each of the OSCE participating states ensure that thepersonnel of military, paramilitary and security forces are recruited and called

164 CSCE/FSC/SC.5/Rev.1 of 18 November 1992, p. 4.165 FSC.GAL/84/99/Rev.1 of 19 July 1999.

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up in a way consistent with OSCE and other human rights international obliga-tions and commitments.166 It means that, for instance, recruitments and call-upsmust be performed on the basis of equality of treatment and non-discrimination.

The expression “consistent with…” is aimed at allowing those participatingstates which do not accept conscientious objection to military service (an issueevoked in paragraph 28) to proceed with regular enlistments and call-ups.

Under a decision taken in July 1998 by the Forum for Security Cooperation,the OSCE participating states established a procedure providing for an exchangeof information on the Code of Conduct’s implementation through a standardquestionnaire comprising 10 items.167 Item No 6 requires information on the“procedures for the recruitment or call up of personnel in the military, para-military forces and internal security forces”.

Paragraph 28[Rights and duties of armed forces personnel, including possibility of exemptions

from or alternatives to military service]The participating states will reflect in their laws or other relevant documents therights and duties of armed forces personnel. They will consider introducing ex-emptions from or alternatives to military service.

In line with other provisions of the Code of Conduct stressing that service-men are, as citizens, entitled to exercise their civil rights (paragraph 23), aswell as overall human rights and fundamental freedoms (paragraphs 27 and32), the present paragraph prescribes that the OSCE participating states injectin their laws or other relevant documents provisions governing the rights andduties of the personnel of the global category of “armed forces”. Accordingto paragraph 33, the rights (with no mention of “duties”) of all armed forcespersonnel must also be protected through appropriate legal and administrativeprocedures.

In the first sentence, the expression “in their laws or other relevant docu-ments” refer to legislative texts and, given the practice of countries (such as

166 Each OSCE participating state is also committed to ensure that its armed forces are“commanded, manned, trained and equipped in ways that are consistent with the pro-visions of international law…” (paragraph 34). Other provisions commit the OSCEparticipating states to reflect in their laws or relevant documents the rights and dutiesof armed forces personnel (paragraph 28) as well as to provide appropriate legal andadministrative procedures to protect the rights of the latter (paragraph 33).

167 FSC.DEC/4/98 of 8 July 1998.


the United Kingdom) where non-legislative means are used for the same pur-pose, texts of other nature. The notion of “duties” of servicemen which appearshere along with that of rights is used for the first and last time in the frameworkof the Code of Conduct. The very general terms in which the sentence has beenformulated reflect the sensitiveness of the issues raised by the rights and dutiesof the “citizens in uniform” that servicemen are supposed to be.

The difficulties encountered by the Parliamentary Assembly of the Councilof Europe to promote norms in this field are particularly illuminating. In 1998,this body signalled considerable differences between member states (all of whombelong to the OSCE) regarding the legal status of conscripts and the rights theyenjoy. It deplored the existence within the armed forces of situations andpractices in direct contravention of the obligations of the European Conventionon Human Rights, especially those related to forced labour (article 4), fair trial(articles 5 and 6), free speech (article 10) or free association (article 11), andeven to cruel treatment (article 3) – a reference to extreme forms of harassmentimposed by older servicemen to new conscripts, notably illustrated by theRussian practice of dedovshchina.168 Accordingly, it adopted Resolution 1166(1998) inviting the member states to promote the application of civil and socialrights which conscripts should enjoy in peacetime and, as far as possible, intime of war.169

Subsequently, the Parliamentary Assembly focused on one particular aspectof the matter: the right to association for members of the professional staffof the armed forces, which belong to the category of civil and political rightsas well as of that of economic and social rights. Taking stock of the tendencyof governments to convert armies from a conscription system to a purelyprofessional system, the Parliamentary Assembly considered in Resolution 1572(2002), that the Committee of Ministers should call on the governments of themember states to allow members of the armed forces and military personnel

168 On the dedovshchina practice see Ilona Kiss: “Rights of Conscripts in Peacetime:Obstacles to and Opportunities for Providing Judicial and Non-Judicial Solutions in EastEuropean and Central Asian Countries”, Legal Framing of the Democratic Control ofArmed forces and the Security Sector. Norms and Realities. Edited by Biljana Vankovska.Beograd, Geneva Centre for the Democratic Control of Armed Forces/Belgrade Centrefor Civil-Military Relations, 2001, pp. 45 & ff.

169 Resolution 1166 (1998) on human rights of conscripts was adopted on 22 September1998. In certain European countries, some armed forces personnel even still have toseek permission from their superiors before marrying. See Parliamentary Assembly ofthe Council of Europe: paragraph 5 of Doc. 9532 of 2 September 2002 (Opinion sub-mitted by Francisco Arnau).

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to organise themselves in representative associations (with the right to negotiateon matters concerning salaries and conditions of employment), to lift therestrictions on their right to association, to allow them to be members of legalpolitical parties and to incorporate all the appropriate rights in military regula-tions.170

Anyhow, today the basic rights of military personnel in many membercountries of the Council of Europe (and hence the OSCE) are still “seriouslylimited”.171 In the specific case of freedom of association, some states do notplace any restrictions whatsoever (Austria, Denmark, Finland Norway, Swedenand Switzerland), while others allow servicemen to participate actively inprofessional associations, but regulate their membership of political parties(Germany, Hungary, Netherlands and Luxembourg). Other states (such asAzerbaijan, the Czech Republic, Romania, Slovenia and Ukraine) forbid mem-bership of political parties and authorise only in restricted forms the right toassociation. Finally, Croatia, France, Italy, Poland and Yugoslavia prohibitservicemen from setting up trade unions and political parties in the armedforces.172

At non-governmental level, the European Council of Conscripts Organisa-tions (ECCO), created in Sweden as a youth organisation in 1979, advocatesthe recognition of all basic human rights, safe working and living conditions,fair legal procedures and acceptable social and economic conditions for the“citizens in uniform” – with particular focus on the situation of conscripts inCentral and Eastern Europe. ECCO’s demands have been submitted under theform of a European Charter on the Rights of Conscripts adopted in September1991 (as a “European Social Charter for Conscripts”) and revised in September1996 – and whose provisions are applicable in time of peace.

170 Resolution 1572 on the right to association for members of the professional staff ofthe armed forces was adopted on 3 September 2002. This text actually replaced Resolu-tion 903 (1998) on the right to association for members of the professional staff of thearmed forces, adopted on 30 June 1998 (see also Doc. 5875 of 12 April 1988: Reportsubmitted by Georg Apenes). In 2001, the Parliamentary Assembly noted that, despiteResolution 903 (1988), still less than half of the Organisation’s membership did notrecognise the right to association for members of the professional staff of their armedforces: Doc. 9080 of 4 May 2001 (Motion to the Committee of Ministers for a Recom-mendation on the matter).

171 Paragraph 1 of the second part of Doc. 9518 of 15 July 2002 (Report submitted by Agnesvan Ardenne-van der Hoeven).

172 Paragraphs 19 to 23, ibid.


The second sentence of paragraph 28 of the Code of Conduct commits theOSCE participating states to “consider” introducing exemptions from or altern-atives to military service. Contrary to what was suggested in the “EuropeanUnion plus” proposal,173 the Code of Conduct does not recognise conscientiousobjection as an established right. It is consistent with the Copenhagen Document(1990) where the OSCE participating states, after taking note that the UnitedNations Commission on Human Rights had recognised the right of everyoneto have conscientious objection to military service, agreed “to consider intro-ducing, where this has not yet been done, various forms of alternative service,which are compatible with the reasons for conscientious objection, such formsof alternative service being in principle of a non-combatant or civilian nature,in the public interest and of a non-punitive nature” (paragraph 18.4).174

Under a decision taken in July 1998 by the Forum for Security Cooperation,the OSCE participating states established a procedure providing for an exchangeof information on the Code of Conduct’s implementation through a standardquestionnaire comprising 10 items.175 Item No 7 requires information on“legislation or other relevant documents governing exemptions from, or altern-atives to compulsory military service”.

Paragraph 29[Promotion of the knowledge of international humanitarian law and reflection of

its commitments in military training programmes and regulations]The participating states will make widely available in their respective countriesthe international humanitarian law of war. They will reflect, in accordance withnational practice, their commitments in this field in their military training pro-grammes and regulations.

173 “Each participating state will embody in legislation or other appropriate documents therights and duties of members of the armed forces as well as the right to refuse to rendermilitary service on the grounds of conscientious objections (CSCE/FSC/SC.21 of 30June 1993, p. 12; author’s italics). See also the Austro-Hungarian proposal (CSCE/FSC/SC.22 of 15 September 1993, p. 18) and the Hungarian proposal (CSCE/FSC/SC.25of 23 February 1994, paragraph 4.2).

174 The United Nations Commission on Human Rights recognised the right to conscientiousobjection in its Resolution 1989/59 of 8 March 1989. The Council of Europe did thesame through the Committee of Ministers’ Recommendation No R (87) 8, as well asthe Parliamentary Assembly’s Order 132 (1997) and Recommendation 1518 (2001).The right to conscientious objection is also enshrined in paragraph 2 of article 10 ofthe European Union’s Charter on Fundamental Rights (2000).

175 FSC.DEC/4/98 of 8 July 1998.

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Paragraph 29 inaugurates a series of five provisions committing the OSCEparticipating states to subject their armed forces to the obligations of inter-national humanitarian law – whose basic instruments are enumerated in para-graph 34.176

In the spirit of the relevant provisions of the four 1949 Geneva Conventionsand their two Additional Protocols of 1977, the first sentence of paragraph 29requires that the OSCE participating states promote a widespread knowledgeof international humanitarian law “in their respective countries”. Broached insuch broad terms, this obligation means that dissemination concerns not onlythe armed forces personnel (those expected to apply it primarily and who remainaccountable for its application), but the entire civilian population whose pro-tection is also provided for by international humanitarian law.177 The aimof dissemination is to raise consciousness of the existence of so-called principlesof humanity and to guarantee their effective respect through preventive means.

Proceeding from the same source of inspiration but with a more directpractical purpose, the second sentence of paragraph 29 requires that the OSCEparticipating states ensure, in accordance with national practice, that theirmilitary training programmes and regulations are in conformity with therelevant commitments of international humanitarian law.178 The expression“in accordance with national practice” takes into account, as in paragraphs 28and 33, the diversity of existing practices at domestic level in the OSCE area.

Under a decision taken in July 1998 by the Forum for Security Cooperation,the OSCE participating states established a procedure providing for an exchangeof information on the Code of Conduct’s implementation through a standardquestionnaire comprising 10 items.179 Item No 8 requires information related

176 The subjection of armed forces to the obligations of international humanitarian law isestablished by five provisions located in Section VII (paragraphs 29-31) and SectionVIII (paragraphs 34-35).

177 The obligation to disseminate international humanitarian law at domestic level, whichmust be complied with in time of both peace and war, is included in article 47 of the1st Convention, article 48 of the 2nd Convention, article 127 of the 3rd Convention andarticle 144 of the 4th Convention – as well as in article 83 of Additional Protocol I andarticle 19 of Additional Protocol II. Annexed to the Protocols, Resolution 21 suggestsa general programme of dissemination, to be undertaken with the possible cooperationof the International Committee of the Red Cross (ICRC).

178 A comparable obligation is provided for in article 47 of the 1st Convention, article 48of the 2nd Convention, article 127 of the 3rd Convention, article 144 of the 4th Conventionand article 83 of Additional Protocol I which refer to programmes of civil instructionas well as of military instruction.

179 FSC.DEC/4/98 of 8 July 1998.


to “instruction on international humanitarian law and other international rules,conventions and commitments governing armed conflict included in militarytraining programmes and regulations”; it concerns paragraph 30 as well.

Paragraph 30[Instruction of armed forces personnel in international humanitarian law, in-cluding awareness of individual accountability at domestic and international

level]Each participating state will instruct its armed forces personnel in internationalhumanitarian law, rules, conventions and commitments governing armed conflictand will ensure that such personnel are aware that they are individually account-able under national and international law for their actions.

Paragraph 30 is the second in a series of five provisions committing theOSCE participating states to subject their armed forces to the obligations ofinternational humanitarian law – whose basic instruments are enumerated inparagraph 34.180 It deals with two intertwined issues: instruction of the globalcategory of “armed forces” personnel in international humanitarian law andindividual accountability of such personnel at both internal and internationallevel.

As a logical consequence of the provision concerning the inclusion ofinternational humanitarian law obligations in military training programmes andregulations (second sentence of paragraph 29), the first sentence of paragraph30 requires that the OSCE participating states provide their armed forces per-sonnel with direct instruction on the rules, conventions and commitmentsgoverning armed conflict.

The second sentence of paragraph 30 stresses that such instruction includesmaking the members of armed forces aware that they are ultimately responsible,on an individual basis, for actions taken in contravention of the relevant normsof domestic and international law. This additional commitment is more specific-ally developed in paragraph 31.

Under a decision taken in July 1998 by the Forum for Security Cooperation,the OSCE participating states established a procedure providing for an exchangeof information on the Code of Conduct’s implementation through a standard


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questionnaire comprising 10 items.181 Item No 8 requires information relatedto “instruction on international humanitarian law and other international rules,conventions and commitments governing armed conflict included in militarytraining programmes and regulations”; it concerns paragraph 29 as well.

Paragraph 31[Individual accountability of commanders and rank and file servicemen of armed

forces under national and international law]The participating states will ensure that armed forces personnel vested with com-mand authority exercise it in accordance with relevant national as well as inter-national law and are made aware that they can be held individually accountableunder those laws for the unlawful exercise of such authority and that orders con-trary to national and international law must not be given. The responsibility ofsuperiors does not exempt subordinates from any of their individual responsibil-ities.

Paragraph 31 is the third in a series of five provisions committing the OSCEparticipating states to subject their armed forces to the obligations of inter-national humanitarian law – whose basic instruments are enumerated in para-graph 34.182 Drafted against the background of atrocities perpetrated in Bosniaand Herzegovina, paragraph 31 represents a development of paragraph 30. Itconcerns the individual accountability of the command and rank and file per-sonnel of the global category of “armed forces”. Being just limited toaccountability, it is less explicit than the regime of the 1949 Geneva Conven-tions which commits the Contracting Parties to enact penal legislation directedagainst persons responsible of grave breaches, as well as to search for and bringsuch persons (regardless of their nationality), before national or even foreigncourts.183 However, the Code of Conduct and the Geneva Conventions proceed

181 FSC.DEC/4/98 of 8 July 1998.182 The subjection of armed forces to the obligations of international humanitarian law is

established by five provisions located in Section VII (paragraphs 29-31) and SectionVIII (paragraphs 34-35).

183 Articles 49-51 of the 1st Geneva Convention and articles 50-53 of the 2nd GenevaConvention. Under Additional Protocol I, commanders are required to prevent breachesfrom being committed in making their subordinates aware of their international human-itarian obligations, to suppress breaches when they have been committed throughdisciplinary or penal action and, in such cases, to report breaches to the competentnational authorities (article 87).


from the same spirit: they both state that violations should not be left or remainunpunished.

The first sentence of paragraph 31 concerns the “armed forces personnelvested with command authority”. Broached in broad terms, this expression doesnot specify, as suggested by Sweden during the drafting process, that officersare also directly concerned. The reason is that the concept of command hasdifferent definitions in the armies of the respective OSCE participating states.However, the expression used in this context is general enough to includeofficers too, since command authority can be delegated to them in specificcircumstances. Therefore, it is reasonable to consider it as covering all personswho retain a command responsibility, whatever its level. In any case, commandmust be exercised “in accordance with relevant national as well as internationallaw”, that is to say in ways consistent with the requirements of the rule of lawand of international humanitarian law – which means that “orders contrary tonational and international law must not be given”. By means of consequence,and given its special responsibilities, each member of the personnel vested withcommand authority is individually accountable under domestic and internationallaw for the unlawful exercise of such authority.

The second sentence of paragraph 31 concerns the rank and file servicemen.It clearly states that the latter could not invoke orders emanating from peoplevested with command authority to escape individual accountability for actscommitted by any of them in contravention to the rule of law and internationalhumanitarian law. During the drafting process, some delegations envisagedincluding in the Code of Conduct a provision stipulating that unlawful ordersshall not have to be executed by subordinates.184 The suggestion was rejectedby the Russian Federation on the ground that it would open the door to aprocess of refusal of orders and that anyhow ordinary soldiers could not alwaysbe able to fairly evaluate the lawfulness or unlawfulness of a specific order.

184 DOC. 337: “… military personnel are obliged to follow lawful orders only; acts contraryto national and international law, rules of war, as well as criminal or delinquent actscannot lawfully be ordered, and military personnel cannot be obliged to obey ordersof this kind; the responsibility of subordinates does not exempt superiors from any oftheir responsibilities” (paragraph (ii) of the Coordinator’s Perception of 3 June 1994,DOC.337 of 8 June 1994).

82 PART I

Paragraph 32[Exercise of their human rights by the personnel of military, paramilitary and

security forces]Each participating state will ensure that military, paramilitary and security forcespersonnel will be able to enjoy and exercise their human rights and fundamentalfreedoms as reflected in CSCE documents and international law, in conformitywith relevant constitutional and legal provisions and with the requirements ofservice.

In line with other provisions of the Code of Conduct stressing that service-men are, as citizens, entitled to exercise their civil rights (paragraph 23) as wellas human rights and fundamental freedoms with regard to recruitment or call-up(paragraph 27), the present paragraph prescribes to each of the OSCE participat-ing states to ensure that the personnel of the first three categories of armedforces listed in paragraph 20 (military, paramilitary and security forces) willbe able to enjoy and exercise overall human rights and fundamental freedoms.

The expression “CSCE documents and international law” just reflects thedistinction between politically binding and legally binding instruments.

“In conformity with relevant constitutional and legal provisions and withthe requirements of service” means that the rights in question can be restrictedby the Constitution and the law in order to take due account of the particularrequirements of military service – for instance, the necessity of daily life inbarracks restricts the freedom of the individual to choose the place of hisresidence.

Separate provisions of the Code of Conduct commit the OSCE participatingstates to reflect in their legislative or equivalent texts the rights and duties ofarmed forces personnel (paragraph 28), as well as to provide appropriate legaland administrative procedures to protect the rights of the latter (paragraph33).185 The difficulties encountered by the Parliamentary Assembly of theCouncil of Europe to promote norms in this field are referred to in the comment-ary of paragraph 28 of the Code of Conduct.

185 In Section VIII, each OSCE participating state is also committed “to ensure that its armedforces are “commanded, manned, trained and equipped in ways that are consistent withthe provisions of international law…” (paragraph 34).


Paragraph 33[Legal and administrative national procedures for the protection of the rights of

all forces personnel]Each participating state will provide appropriate legal and administrative proced-ures to protect the rights of all its forces personnel.

The present paragraph is a direct complement to paragraph 32, whichprescribes that each of the OSCE participating states ensures that the personnelof military, paramilitary and security forces be able to enjoy and exercise overallhuman rights and fundamental freedoms. It complements paragraph 28 underwhich the governments are committed to reflect in their laws or other relevantdocuments the rights and duties of armed forces personnel.

Paragraph 32 commits each of the OSCE participating states to ensuringthe protection of the rights of their servicemen by means of appropriate legaland administrative procedures – entitling servicemen to dispose, for instance,of means of remedy in support of the full exercise of their rights. The expression“appropriate (…) administrative procedures” takes into account the case ofthose participating states (such as the United Kingdom) where there existadministrative rather than formerly legal procedures.

Under a decision taken in July 1998 by the Forum for Security Cooperation,the OSCE participating states established a procedure providing for an exchangeof information on the Code of Conduct’s implementation through a standardquestionnaire comprising 10 items.186 Item No 9 requires information on “legaland administrative procedures protecting the rights of all forces personnel”.

SECTION VIII[DEMOCRATIC USE OF ARMED FORCES]

Summary contents of Section VIII: Consistency of the command, manning,training and equipment of armed forces with international humanitarian law(§ 34). Consistency of defence policy and doctrine with international human-itarian law and the Code of Conduct (§ 35). Subjection of the domestic useof force to the rule of law and commensurability of such use with the needsfor enforcement (§ 36). Non-use of force to limit either the peaceful and lawfulexercise of human and civil rights or to deprive people of their identity (§ 37).

186 FSC.DEC/4/98 of 8 July 1998.

84 PART I

Section VIII is a natural extension of Section VII. It consists of four paragraphs.The first two (paragraphs 34 and 35) are related to the subjection of armedforces to the norms and prescriptions of international humanitarian law – anissue also addressed in paragraphs 29 to 31 in the framework of Section VII.Much more importantly, the two others (paragraphs 36 and 37) concern thedemocratic use of armed forces in the performance of internal security missions.By contrast with the provisions of Section I to VI of the Code of Conduct,which are basically aimed at hindering the use of force between OSCE particip-ating states, paragraphs 36 and 37 set forth rules restricting the use of forcewithin participating states.

Paragraph 34[Consistency of the commandment, manning, training and equipment of armed

forces with international humanitarian law]Each participating state will ensure that its armed forces are, in peace and inwar, commanded, manned, trained and equipped in ways that are consistent withthe provisions of international law and its respective obligations and commitmentsrelated to the use of armed forces in armed conflict, including as applicable theHague Conventions of 1907 and 1954, the Geneva Conventions of 1949 and the1977 Protocols Additional thereto, as well as the 1980 Convention on the Use ofCertain Conventional Weapons.

Paragraph 34 is the fourth in a series of five provisions committing theOSCE participating states to subject their armed forces to the obligations ofinternational humanitarian law.187 It contains two general indications.

First, paragraph 34 specifies that each of the OSCE participating states isrequired to organise its armed forces, in peace and wartime, in accordance withinternational law and international humanitarian law commitments, at four basiclevels: command, manning, training and equipment.

Second, paragraph 34 enumerates a number of relevant international instru-ments in accordance with which the OSCE participating states are expectedto organise their armed forces – “as applicable”, that is to say to the extent thateach of them is legally bound by the instruments in question. The listing men-tions the basic elements of the general corpus of international humanitarianlaw, namely the Geneva Conventions of 12 August 1949 (whose regime is


COMMENTARY: SECTION VIII 85

applicable to inter-state wars waged between the regular armed forces of sover-eign states)188 and the two Additional Protocols of 8 June 1977 to the GenevaConventions which take into account the evolution of armed conflicts since1949.189 It also includes the Geneva Convention on prohibition or restrictionson the use of certain conventional weapons which may be deemed to be excess-ively injurious or to have indiscriminate effects (10 October 1980), which alsobelongs to the realm of arms control. Also known as the “Inhumane WeaponsConvention”, this instrument fills a gap of the Additional Protocols which didnot restrict or forbid the use of any specific weapon.190

The elliptic phrase “the Hague Conventions of 1907 and 1954” actuallyrefers to the numerous instruments of 18 October 1907 resulting from thehistoric Second Peace Conference, as well as the UNESCO-sponsored Conven-tion for the protection of cultural property in the event of armed conflict of14 May 1954.

Paragraph 35[Consistency of defence policy and doctrine with international humanitarian law

and the Code of Conduct]Each participating state will ensure that its defence policy and doctrine are con-sistent with international law related to the use of armed forces, including inarmed conflict, and the relevant commitments of this Code.

Paragraph 35 is the last in a series of five provisions committing the OSCEparticipating states to subject their armed forces to the obligations of inter-

188 The Geneva regime is based on four instruments: a Convention for the ameliorationof the condition of the wounded and sick in armed forces in the field (I), a Conventionfor the amelioration of the condition of the wounded, sick and shipwrecked membersof armed forces (II), a Convention relative to the treatment of prisoners of war (III)and, finally, a Convention relative to the protection of civilian persons in time of war(IV).

189 Protocol I is related to the protection of victims of international (inter-state) armedconflicts and Protocol II concerns the protection of victims on non-international armedconflicts.

190 The Inhumane Weapons Convention is supplemented with additional texts on non-detectable fragments Protocol I, 1980), prohibitions or restrictions on the use of mines,booby-traps and other devices (Protocol II, 1980, amended in 1996), prohibitions orrestrictions on the use of incendiary weapons (Protocol III) and on blinding laser weapons(Protocol IV, 1995).

86 PART I

national humanitarian law.191 It requires that each individual OSCE particip-ating state conform its “defence policy and doctrine” to the obligations ofinternational humanitarian law and to the relevant commitments of the Codeof Conduct.

During the drafting process, Poland suggested that the OSCE participatingstates undertake to base their military doctrines on defensive principles andthat “the structure, equipment, state of readiness and training of the armed forcesin Europe (…) be oriented to serve defensive purposes”.192 As demonstratedby two special Seminars successively held in 1990 and 1991, military doctrinesin the OSCE area had already been leaning in that direction since the end ofthe Cold War.193 However, and although the Code of Conduct included provi-sions committing the OSCE participating states to maintain only such militarycapabilities commensurate with individual or collective security needs (paragraph12), not to impose military domination over each other (paragraph 13) and toexercise restraint in military expenditures (second sentence of paragraph 22),the Polish proposal was not retained.


192 CSCE/FSC/SC.5/Rev.1 of 18 November 1992, p. 3). A more or less similar provisionwas offered by the Turkish proposal (CSCE/FSC/SC.8 of 16 December 1992., 3rd

sentence of article 8) and the Hungarian proposal (CSCE/FSC/SC.25 of 23 February1994, paragraph 9.1). At a certain stage of the drafting process, the following languagewas envisaged: “The military doctrine of (…) armed forces is defensive/non-aggressivein character and is reviewed periodically with a view to eliminating features that maynot be in conformity with the relevant principles of the Code and international law”(paragraph 23.3 of the Coordinator’s 4th revised version of the Code of Conduct: DOC.551 of 22 July 1994).

193 The first Seminar on Military Doctrines took place prior to the dissolution of the USSR(Vienna, 16 January-5 February 1990). It produced no final text, but its proceedingsinspired two elements which were embodied in the Vienna Document 1990 on CSBM:the annual exchange of information on military budgets and the annual implementationassessment meetings. The second Seminar was held in 1991 (no summary of proceedings)and the third in 1998 (FSC.MD.GAL/3/98 of 9 February 1998) – both in Vienna. Allspeeches and contributions to the 1990 and 1991 Seminars have been published by theVienna Institut für Sicherheitspolitik und der Landesverteidigungsakademie in March1990. Under paragraph 15.7 of the Vienna Document 1999 on CSBM, the OSCE particip-ating states are now encouraged to hold “high-level military doctrines seminars similarto those already held”. On that basis, a new Seminar took place, in Vienna, from 11to 13 June 2001 (FSC.GAL/78/01 of 6 July 2001).


Paragraph 36[Subjection of the domestic use of force to the rule of law and commensurability

of such use with the needs for enforcement]Each participating state will ensure that any decision to assign its armed forces tointernal security missions is arrived at in conformity with constitutional proced-ures. Such decisions will prescribe the armed forces’ missions, ensuring that theywill be performed under the effective control of constitutionally establishedauthorities and subject to the rule of law. If recourse to force cannot be avoidedin performing internal security missions, each participating state will ensure thatits use must be commensurate with the needs for enforcement. The armed forceswill take due care to avoid injury to civilians or their property.

Paragraph 36 offers (together with paragraph 37) standards on the use offorce for internal security purposes, presumably in case of internal disturbancesand tensions. It establishes that the domestic use of armed forces must remainsubject to the rule of law and that international law and international human-itarian law provisions must be observed in the course of such use of force asin the case of inter-state armed conflicts.194

The provisions of paragraph 36 formally refer to “internal security missions”performed by “armed forces”. The Austro-Hungarian proposal considered “armedforces” as including all five categories enumerated in paragraph 20 – namelymilitary forces, paramilitary forces, internal security forces, intelligence servicesand the police.195 The “European Union plus” proposal limited the same con-cept to the first three categories, while adding irregular forces.196 From amore sophisticated perspective, the Hungarian proposal suggested that if civilianauthorities were unable to restore democratic order by political means, theycould make use in the first place of the police and internal security forces andthen, if the latter failed, turn to “military forces” specially trained for thatpurpose – as a last resort and only for the protection of the civilian populationand the restoration of democratic legality.197 As no consensus could beachieved on the issue, only the general broad expression “armed forces” was

194 On the rationale for the implementation of international humanitarian law rules in internaldisturbances and tensions, see the special issue of the International Review of the RedCross (No 769, January-February 1988) in which two experts proposed a specific “Codeof Conduct” (Hans-Peter Gasser) and a specific “Model Declaration” (Theodor Meron).

195 CSCE/FSC/SC.22 of 15 September 1993, p. 18.196 CSCE/FSC/SC.21 of 30 June 1993, pp. 13-14.197 CSCE/FSC/SC.25 of 23 February 1994, paragraphs 7, 8 and second sentence of paragraph

6.3.

88 PART I

retained. Despite its lack of precision, it can reasonably be assumed that itbasically concerns the police and/or the internal security forces – and, in moreexceptional circumstances, the paramilitary or even military forces. Paragraph36 refers to “armed forces” assigned to “internal security missions” and notto internal security forces as such; however, the latter are evidently sub-sumed.198

The first sentence of paragraph 36 establishes that any decision throughwhich an OSCE participating state assigns to its armed forces an internalsecurity-type mission must be taken and formulated in conformity with theprocedures established by the Constitution of the country. It does not expresslyprovide for, as suggested by Hungary, the accountability of political decision-makers and commanders of such missions.199

The second sentence requires that internal security missions be performedunder the effective control of constitutionally established authorities and subjectto the rule of law. This requirement is in line with the fundamental provisionof paragraph 21 prescribing that “each participating state will at all timesprovide for and maintain effective guidance to and control of its military,paramilitary and security forces by constitutionally established authorities vestedwith democratic legitimacy”. The only difference is that paragraph 36 refersto the broad concept of “rule of law” which implicitly covers the notion of“authorities vested with democratic legitimacy”. In any case, the expression“subject to the rule of law” implies that internal security missions must beperformed under the permanent effective control of judicial as well as politicalcivilian authorities. It is worth remembering that according to paragraph 2 ofthe Copenhagen Document on the Human Dimension (1990) the rule of law“does not mean merely a formal legality which assures regularity and consist-ency in the achievement and enforcement of democratic order, but justice basedon the recognition and full acceptance of the supreme value of the humanpersonality and guaranteed by institutions providing a framework for its fullestexpression”.200

198 So far, the OSCE participating states have not been able to agree, as suggested duringthe 2nd Follow-up Conference on the Code of Conduct, on the idea of revising the 1998Questionnaire in order to introduce a differentiation between “armed forces” and “internalsecurity forces” (FSC.GAL/84/99/Rev.1 of 19 July 1999).

199 CSCE/FSC/SC.25 of 23 February 1994, paragraph 6.4.200 From that premise, the Copenhagen Document on the Human Dimension (1990) identifies

a number of basic elements (paragraphs 5.1 to 5.20) – among which are control andaccountability of military forces and the police by the civil authorities (paragraph 5.6).Subsequent OSCE texts reaffirmed, more or less, parts of that nomenclature. A new


Contrary to what had been envisaged in the course of the drafting process,paragraph 36 does not indicate that use of force may legitimately be used atdomestic level for specific reasons including, for instance, the performance ofrelief operations or the maintenance and restoration of democratic publicorder.201

It does not either foresee that “armed forces also may be called upon forother assistance during a state of public emergency” and that in such a casethe relevant commitments of the Moscow Document on the Human Dimension(1991) apply.202 In the latter, which was adopted in the aftermath of the failedcoup against Mikhail Gorbachev, the OSCE participating states affirmed that“a state of public emergency may not be used to subvert the democratic constitu-tional order, nor aim at the destruction of internationally recognised humanrights and fundamental freedoms” (second sentence of paragraph 28.1).203

They also agreed that if a state of public emergency may be proclaimed bya constitutionally lawful body duly empowered to do so, subject to approvalin the shortest possible time or control by the legislature (paragraph 28.2), itwill have to be lifted as soon as possible in order not to remain in force longerthan strictly required by the exigencies of the situation (paragraph 28.3). Moresignificantly, they decided that when a state of public emergency is declaredor lifted, the government concerned will immediately inform the OSCE of this

element, anti-corruption, was introduced in the 1999 Istanbul Charter for EuropeanSecurity (paragraph 33) and the 1999 Istanbul Summit Declaration (paragraph 37).

201 First sentence of paragraph 19 of DOC. 551 of 22 July 1994 (Coordinator’s 4th revisedversion of the Code of Conduct) and paragraph 29.2 of the unnumbered Coordinator’sPerception and Suggestions of 10 November 1994.

202 Second sentence of paragraph 19 of DOC. 551 of 22 July 1994 (Coordinator’s 4th revisedversion of the Code of Conduct) and paragraph 26.4 of the Coordinator Perception of11 November 1994 (unnumbered document). The issue of state of public emergencywas addressed in the “European Union plus” proposal (CSCE/FSC/SC.21 of 30 June1993, p. 12), the Austro-Hungarian proposal (CSCE/FSC/SC.22 of 15 September 1993,pp. 17-18) and the Hungarian proposal (CSCE/FSC/SC.25 of 23 February 1994, para-graph 2.12).

203 At the same time, they condemned “unreservedly forces which seek to take power froma representative government of a participating state against the will of the people asexpressed in free and fair elections and contrary to the justly established constitutionalorder” (paragraph 17.1) and accordingly committed themselves to “support vigorously”,in case of overthrow or attempted overthrow of a legitimately elected government ofa participating state by undemocratic means, “the legitimate organs of that state up-holding human rights, democracy and the rule of law…” (paragraph 17.2).

90 PART I

decision, as well as any derogation made from its international human rightsobligations (paragraph 28.10).204

However, by stating that “if recourse to force cannot be avoided…”, thethird sentence of paragraph 36 obliquely but clearly legitimises the domesticuse of force from a general and more broad perspective.205 It introduces herethe subjective criterion of “commensurability” with the needs for enforcement– which does not exist in the Geneva Conventions (1949) or their Protocols(1977).206 It does not specify that armed forces will be used only “in caseof absolute necessity” (as suggested by Hungary) or “only when strictly neces-sary” as tabled in the “European Union plus” proposal207 – or also “after civilmeans of enforcement have been exhausted”.208

It is from the angle of commensurability (or proportionality) that the be-haviour of the Russian armed forces in Chechnya has been put into questionat the OSCE.209 The first Chechnya war started on 11 December 1994, eightdays after the adoption of the Code of Conduct and three weeks before itscoming into effect. On 2 February 1995, the Permanent Council adopted (with

204 Subsequently, the Helsinki Decisions 1992 specified that the ODIHR will act as clearing-house for the information related to the declaration and lifting of a state of publicemergency (first “tick” of chapter VI’s paragraph 5 b). Until 2001, the commitmentcontained in paragraph 28.10 of the Moscow Document on the Human Dimension (1991)was hardly complied with (see Victor-Yves Ghebali: “The Issue of the State of Emerg-ency in the Context of the OSCE”, Non-Derogable Rights and States of Emergency.Edited by Daniel Prémont. Brussels, Bruylant, 1996, pp. 317-330. In the aftermath ofthe 11 September terrorist attacks against the United States, several governments ofthe OSCE informed the ODIHR about the measures taken in the framework of the stateof public emergency (ODIHR.GAL/3/02 of 31 January 2002, PC.DEL/49/02 of samedate and ODIHR.GAL/8/02 of 5 March 2002).

205 Through the Moscow Document on the Human Dimension (1991), the OSCE participatingstates also agreed that, in the framework of a state of public emergency, “if recourseto force cannot be avoided, its use must be reasonable and limited as far as possible”(last sentence of paragraph 28.1).

206 The criterion of commensurability also appears in paragraph 12 of the Code of Conductunder which each OSCE participating state is committed to “maintain only such militarycapabilities as are commensurate with individual or collective legitimate security needs,taking into account its obligations under international law”.

207 CSCE/FSC/SC.25 of 23 February 1994, paragraph 6.3 and CSCE/FSC/SC.21 of 30 June1993, p. 14.

208 Paragraph 24.2 of DOC. 551 of 22 July 1994 (Coordinator’s 4th revised version of theCode of Conduct).

209 From a human rights perspective, see Nicolas M. L. Bovay: “The Russian ArmedIntervention in Chechnya and its Human Rights Implications”, Review of the Inter-national Commission of Jurists, No 54, June 1995, pp. 29-56.


Moscow’s full agreement) a decision which, without directly referring to theCode of Conduct, expressed “deep concern over the disproportionate use offorce by the Russian armed forces” in Chechnya.210 At the 1995 AnnualAssessment Implementation Meeting, Sweden requested clarification fromMoscow.211 Time and again, the European Union has called on Russia to fulfilits obligations under the Code of Conduct.212

Drafted in non-constraining language (“take due care to avoid”), the fourthand last sentence of paragraph 36 hints that commensurability implies avoidingto the extent possible damage for civilians persons and their property. Thenotion of “unlawful injury”, raised during the drafting process,213 did not gaina consensus. The idea that any OSCE participating state resorting to a domesticuse of force could provide information on the size, organisation, role andobjectives and the activities of the armed forces involved was equallyrejected.214

In short, paragraph 36 spells out four conditions regulating the domesticuse of force: a constitutionally lawful decision, respect of the rule of law duringperformance of the operation, commensurability with the needs for enforcementand care to avoid excessive injury to civilians and their property.

As stressed by David Raic, to a limited but real extent paragraph 36 providesfor “the regulation of conduct not covered by humanitarian law and the lawregarding human rights” since “in an international context, norms for the useof force in internal conflicts are virtually non-existent, the only relevant examplebeing the Code of Conduct for Law Enforcement Officials adopted by the UNGeneral Assembly in 1979”. Likewise, paragraph 36 establishes “a link between

210 PC.DEC/10 of 2 February 1995.211 DOC.467 of 15 March 1995.212 For instance see FSC.AIAM/10/00 of 28 February 2000. On the issue of democratisation

of the Russian armed forces, see Yuri Fedorov: Democratic Transformation of theSecurity Sector in Russia. A Sad Saga of Failure. Geneva, Geneva Centre for theDemocratic Control of Armed Forces, 2002, 20 p. (DCAF Working Papers, No 98).

213 Paragraph 29.2 of the unnumbered Coordinator’s Perception and Suggestions of 10November 1994.

214 This idea was included in the “European Union plus” draft proposal (CSCE/FSC/SC.21of 30 June 1993, p. 14) and reflected in the Hungarian draft proposal (CSCE/FSC/SC.25of 23 February 1994, paragraphs 7 and 8).

92 PART I

the application of force and individual human rights; a link not explicitlymentioned in human rights treaties”.215

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 theirindividual or collective identity]

The participating states will not use armed forces to limit the peaceful and lawfulexercise of their human and civil rights by persons as individuals or as repres-entatives of groups nor to deprive them of their national, religious, cultural,linguistic or ethnic identity.

Along with paragraph 36, paragraph 37 establishes standards on the useof force for internal security purposes. The notable difference between the twoparagraphs is that the former is permissively drafted (“if recourse to force cannotbe avoided in performing internal security missions (…), each participating statewill ensure that its use must be commensurate with the needs for enforcement”)– while the latter contains a prohibition: “the participating states will not usearmed forces…”. The spirit of paragraph 37 is to prohibit a domestic use offorce aimed at restricting human and civil rights when peacefully and lawfullyexercised or at depriving people of their individual or collective identity.Similarly to paragraph 36, paragraph 37 formally concerns “armed forces” butwithout explicitly referring to “internal security missions”; however, the latterare evidently subsumed.

Paragraph 37 prohibits the domestic use of force for the sake of “personsas individuals or as representatives of groups” – an expression wide enoughto cover all individuals and groups living in the state, including persons belong-ing to a national minority and minority group. However, it deliberately avoids

215 David Raic: “The Code, Humanitarian Law, and Human Rights”, Cooperative Security,the OSCE and its Code of Conduct. Edited by Gert de Nooy. The Hague, Kluwer LawInternational, 1996, pp. 51 and 53. Paragraph 29.3 of the unnumbered Coordinator’sPerception and Suggestions of 10 November 1994 contained a provision committingthe participating states to ensure that “any armed forces assigned to internal securitymissions will be specially trained in the implementation of such tasks, that they are awarethat where police powers are exercised by military or security forces, officers of suchorganisations are regarded as law enforcement officials and, as such, are to be guidedby the United Nations Code of Conduct for Law Enforcement Officials”. On the 1979United Nations Code, see paragraph 20 of the present Commentary.


referring to the concept of “national minority” which appeared in the Polish,“European Union plus”, Austro-Hungarian and Hungarian draft proposals.216

The expression “peaceful and lawful exercise of their human and civilrights” is the remnant of proposals aimed at committing the OSCE participatingstates to respecting the right of citizens to advocate constitutional change bypeaceful and legal means, and not to use force against those who do so.217

The expression “nor to deprive them of their national, religious, cultural,linguistic or ethnic identity” is the remnant of other proposals prohibiting thedomestic use of force contrary to the principle of self-determination of peoples,when pursued peacefully.218 The specific terms it uses (“national”, “religious”,“cultural”, “linguistic”, “ethnic”) are somewhat redundant: the umbrella conceptof culture encompasses religion, language and ethnicity; besides, a “nationalminority” is in fact an “ethnic minority” characterised by religion and/orlanguage.

Two particular suggestions evoked during the drafting process have notbeen retained. The first one concerned the prohibition of modification by forceof internal boundaries and the forceful resettlement of populations.219 Thesecond one was the non-use of armed forces for reprisal purposes.220

216 In their joint draft proposal, Austria and Hungary suggested (in vain) a provision statingthat deprivation of national minorities of the free exercise of their rights posed “a specialthreat to security within and between states and thus to the stability of the whole CSCEarea” (CSCE/FSC/SC.22 of 15 September 1993, p. 15).

217 CSCE/FSC/SC.5/Rev.1 of 18 November 1992, p. 5 (Polish proposal), CSCE/FSC/SC.21of 30 June 1993, p. 15 (“European Union plus” proposal), CSCE/FSC/SC.22 of 15September 1993, p. 18 (Austro-Hungarian proposal) and CSCE/FSC/SC.25 of 23 Febru-ary 1994, paragraph 6.5 (Hungarian proposal). The “European Union plus” proposalalso suggested a commitment concerning the respect of the peaceful evolution of states:“The participating states will respect and encourage peaceful evolution in the constitu-tions of all PS in accordance with international law, the principles laid down in the Codeand the democratic wishes of the people” (CSCE/FSC/SC.21 of 30 June 1993, p. 5).

218 Polish proposal: “Accordingly, the participating states will refrain from undertakingany use of force or acts of coercion contrary to the principle of self-determination ofpeoples, when pursued peacefully. The use of force to deprive peoples of their nationalidentity constitutes a violation of their inherent rights” (CSCE/FSC/SC.5/Rev.1 of 18November 1992, p. 5).

219 CSCE/FSC/SC.21 of 30 June 1993, p. 14 (“European Union plus” proposal), CSCE/FSC/SC.22 of 15 September 1993, pp. 16 and 18 (Austro-Hungarian proposal) and CSCE/FSC/SC.25 of 23 February 1994, paragraph 6.5 (Hungarian proposal).

220 CSCE/FSC/SC.25 of 23 February 1994, paragraph 6.3 (Hungarian proposal) and CSCE/FSC/SC.8 of 16 December 1992, article 21 (Turkish proposal).

94 PART I

SECTION IX[IMPLEMENTATION ARRANGEMENTS]

Section IX consists of a single paragraph providing for rudimentary imple-mentation arrangements to the Code of Conduct. Indeed, paragraph 38 doesnot establish any special monitoring and verification mechanisms of the kindsuggested in the sophisticated tripartite proposal tabled by Austria, Hungaryand Poland).221 It just prescribes the use of available mechanisms.

Paragraph 38[Accountability for implementation]

Each participating state is responsible for implementation of this Code. Ifrequested, a participating state will provide appropriate clarification regarding itsimplementation of the Code. Appropriate CSCE bodies, mechanisms and proced-ures will be used to assess, review and improve if necessary the implementation ofthis Code.

In conformity with the spirit of the cooperative security approach andaccording to a customary practice of the OSCE, the first sentence of paragraph38 recognises the accountability of each government to all others for the Codeof Conduct’s observance. As a direct consequence, the second sentence estab-lishes for each OSCE participating state a right to request (at multilateral aswell as bilateral level) clarification and a duty to respond to such requests byproviding relevant information concerning compliance with the commitmentsof the Code of Conduct. Paragraph 38 does not go as far as committing theOSCE participating states to identify those among them responsible for breachesof the Code of Conduct (including the use of force for territorial acquisitionor other unlawful use of force) and take appropriate action such as “extendingthe mandates for CSCE fact-finding missions to explore apparent breaches”.222

In their joint proposal, Austria, Hungary and Poland envisaged elaborate arrange-

221 CSCE/FSC/SC.17 of 5 May 1993.222 CSCE/FSC/SC.21 of 30 June 1993, p. 15 (“European Union plus” proposal). Similarly,

the Polish proposal provided for “the possibility for extending the mandate of CSCEfact-finding missions to cover the problems resulting from the implementation of theCode, including humanitarian aspects of military service” (CSCE/FSC/SC.5/Rev.1 of18 November 1992, p. 15).

COMMENTARY: SECTION IX 95

ments more or less inspired by the 1990 Berlin “Mechanism for consultationand cooperation with regard to emergency situations”.223

In the standard case of “doubts about compliance”, the requested participat-ing state (or states) would have to provide written information within 10 days.If the clarification appeared to be unconvincing, the targeted state (or states)could be asked to a give “a full explanation” within two weeks at a multilateralmeeting. Alternatively, a group of nine participating states could request theChairman-in-Office of the OSCE to establish a Rapporteur mission whose finalreport would be discussed at a multilateral meeting. Under either procedure,the multilateral meeting would be empowered to recommend “a course ofaction” to remedy the situation resulting from a violation of the provisions ofthe Code of Conduct – if necessary in the absence of the consent of the states(or states) directly concerned , that is to say by consensus minus. If the recom-mendations are not complied with, the Committee of Senior Officials (nowknown as the “Senior Council”) would be entitled to take “appropriate de-cisions” at its next regular meeting, here again, by consensus minus if neces-sary.224

In an outstanding case of “serious emergency resulting from a violationof basic norms in the field of security”, the 1990 Berlin Mechanism wouldimmediately be applied with a major difference: the recommendations or con-clusions for a solution (including an immediate convocation of the OSCEMinisterial Council) could be taken, if necessary, by consensus minus. If therecommendations were not complied with, the OSCE participating states coulddecide (again if necessary by consensus minus) to bring to the attention of the

223 Adopted at the first meeting of the OSCE Ministerial Council, held in the German capitalon 19-20 June 1990, the Berlin Mechanism was patterned after the “Mechanism forconsultation and cooperation as regards unusual military activities” (established by theVienna Document 1990 on CSBM) – inspired itself by the Mechanism on the HumanDimension created by the 1989 Vienna Concluding Document. The Berlin Mechanismis applicable in case of “a serious emergency situation which may arise from a violationof one of the Principles of the [Helsinki] Final Act or as a result of major disruptionsendangering peace, security and stability” – and after an unsuccessful attempt is madeto obtain direct clarification from the concerned government. It provides for an emerg-ency meeting (convened not by consensus, but on the basis of a quorum of at least 13participating states) empowered to adopt “recommendations” or “conclusions”, includingthe convening of a meeting at ministerial level. The text of the Berlin Mechanism isembodied in Annex II of the Summary of Conclusions of the Berlin Ministerial Council.

224 CSCE/FSC/SC.17 of 5 May 1993, Section I. The Senior Council has not been convenedsince March 1996. Its functions have actually been taken over by the Permanent Council.

96 PART I

United Nations Security Council that a situation endangering international peaceand security had arisen and request it “to take the appropriate action”.225

The third sentence recalls that, as with any other OSCE basic document,the Code of Conduct implementation will routinely be assessed and reviewedin the framework of OSCE meetings (i.e. Review Conferences), as well asthrough mechanisms and procedures such as the 1990 Berlin Mechanism. Theexpression “improve if necessary the implementation of this Code” means thatin the course of assessment and review by OSCE participating states, newprovisions could be adopted for ensuring better implementation. Actually, sincethe adoption of the Code of Conduct, three procedures or practices have beenestablished:

a) Annual assessments. Since 1995, the Code of Conduct has constituteda regular item on the agenda of the Annual Implementation Assessment Meeting(AIAM), the body responsible for the regular review of the implementationof the CSBM regime and all other OSCE commitments in the field of thepolitico-military dimension.226

b) Annual exchange of information. In conformity with its paragraph 39,the Code of Conduct entered into force on 1 January 1995. By the end of thatyear, some participating states spontaneously notified such implementationmeasures as the translation of the Code of Conduct into a national languageand its repercussions on military training programmes. The same practicecontinued on a larger scale in 1996. Given that a consensus was emerging overthe principle of a generalised exchange of information on a regular basis,227

the OSCE’s Conflict Prevention Centre suggested that such an exchange shouldtake place in a standardised format. Accordingly, in May 1997, it submitted

225 CSCE/FSC/SC.17 of 5 May 1993, Section II.226 1996: REF.FSC/127/96 of 14 March 1996 (p. 20) and REF.SEC/218/96 of 24 April

1996 (p. 6); 1997: REF.FSC/128/97 of 14 March 1997 (p. 18) and REF.SEC/199/97of 27 March 1997 (p. 5); 1998: FSC.AIAM/49/98 of 11 March 1998 (pp. 20-21) andFSC.AIAM/50/98 of 26 March 1998 (p. 5); 1999: FSC.AIAM/41/99 of 11 March 1999(pp. 18-19); 2000: FSC.AIAM/15/00 of 28 February 2000 (p. 5) and FSC.AIAM/46/00of 9 March 2000 (p. 18); 2001: FSC.AIAM/11/01 of 26 February 2001 (p. 2),FSC.AIAM/40/01 of 7 March 2001 (pp. 14-15) and FSC.AIAM/41/01/Rev.1 of 11 April2001 (p. 5); 2002: FSC.AIAM/42/00 of 13 March 2002 (p. 23), and FSC.AIAM/43/02of 13 March 2002 (p. 10); 2003: FSC/AIAM/51/03 of 12 March 2003 (p. 24), FSC/AIAM/53/03/Rev.1/Corr.1 of 1 April (item 11) and FSC.AIAM/40/04 of 17 March 2004(p. 23).

227 Many participating states, including those of the European Union advocated a compulsoryexchange of information, while others (like the Russian Federation) expressed preferencefor a voluntary one.


to the Forum for Security Cooperation a model-questionnaire for the purposeof either a voluntary or compulsory exchange of information.228 Poland andGermany immediately decided to fill in the questionnaire for a trial test.229

Although welcoming the move, Canada criticised the Questionnaire for its length(which contained no less than 19 rubrics) and redundancies.230 Finally, inJuly 1998, the Forum for Security Cooperation decided that beginning withthe following year, on 15 April at the latest, the participating states wouldexchange information (including documents where appropriate) on the basisof a streamlined Questionnaire including the 10 following rubrics:231

Question No 1 Appropriate measures to prevent and combat terrorism, in par-ticular participation in international agreements to that end (para-graph 6 of the Code of Conduct)

Question No 2 National planning and decision-making process for the determina-tion of the military posture, including (a) the role of Parliamentand ministries and (b) public access to information related toarmed forces (paragraphs 13 and 22 of the Code of Conduct)

Question No 3 Stationing of armed forces on the territory of another particip-ating state with their freely negotiated agreement as well as inaccordance with international law (paragraph 14 of the Code ofConduct)

Question No 4 Constitutionally established authorities and procedures to ensureeffective democratic control of military forces, paramilitaryforces, internal security forces, intelligence services and thepolice (paragraphs 20 and 21 of the Code of Conduct)

Question No 5 Role and missions of military, paramilitary forces and internalsecurity forces as well as controls to ensure that they act solelywithin the constitutional framework (paragraph 21 of the Code ofConduct)

228 REF.SEC/305/97 of 16 May 1997.229 FSC.DEL/25/97 (Poland) and FSC.DEL/27/97 (Germany) of 22 September 1997. The

Netherlands followed suit in the next year (FSC.DEL/114/98 of 16 May 1998).230 FSC.DEL/76/97 of 6 October 1997 and FSC.DEL/73/98 of 18 March 1998.231 FSC.DEC/4/98 of 8 July 1998. Besides reducing redundancies of the initial draft Ques-

tionnaire submitted by the Conflict Prevention Centre, the streamlining led to the dilutionof two important items respectively related to paramilitary forces and internal securitymissions.

98 PART I

Question No 6 Procedures for the recruitment or call-up of personnel in themilitary, paramilitary forces and internal security forces (para-graph 27 of the Code of Conduct)

Question No 7 Legislation or other relevant documents governing exemptionsfrom, or alternatives to compulsory military service (paragraph28 of the Code of Conduct)

Question No 8 Instruction on international humanitarian law and other inter-national rules, conventions and commitments governing armedconflict included in military training programmes and regulations(paragraphs 29 and 30 of the Code of Conduct)

Question No 9 Legal and administrative procedures protecting the rights of allforces personnel (paragraph 33 of the Code of Conduct)

Question No 10 Any other information

The 1998 Questionnaire refers to 12 specific provisions of the Code ofConduct. Only two items concern inter-state relations: terrorism (Question No1) and the stationing of foreign troops (Question No 3). Seven items concernthe democratic control of armed forces (Questions No 2, 4 to 9). The Question-naire does not require information on the domestic use of force, an issue whichis however regulated in paragraph 36.

In June 2002, the Forum for Security Cooperation requested the ConflictPrevention Centre to prepare an overview of the exchange of information ofthe current year.232 The report was submitted in September 2002. It notedthe existence of “a marked divergence” in the interpretation of the Questionnaireby participating states (basically due to the uneven degree of precision requestedin most of its items) and underscored that the nature and substance of responsesprovided for did not give “much room for summarisation or generalisation”.Accordingly, the report made the following practical suggestions:233

– Only changes to purely factual information on structures, institutions,processes and legislation need be provided on an annual basis and, therefore,a one-off submission of the type of information required under Question No2 (national planning and decision-making process) would be sufficient.

232 FSC.DEC/7/02 of 5 June 2002.233 FSC.GAL/102/02 of 6 September 2002 (+ Add.1 and Add.1/Rev.1 of 20 September

2002, and Add.1/Rev.2 of 7 October 2002 on status of ratification of the 12 UnitedNations antiterrorism Conventions and Protocols).


– Question 2 (information on national planning and decision-making process)and Question 4 (identification of constitutionally-established authorities andprocedures ensuring effective democratic control of armed forces) being partlyrepetitive, Question 4 could be expanded to include information on nationallegislation regarding the integration of armed forces into civil society.

– Given that Question 2 (information on national planning and decisionmaking-process), Question 4 (identification of constitutionally establishedauthorities and procedures ensuring effective democratic control of armed forces)and Question 5 (role and missions of military, paramilitary forces and internalsecurity forces) contain rather repetitive information, “the subjects of politicalcontrol and their respective processes and institutions could be combined intoone question, which would separate the contents of the question and leave spacefor the elaboration of roles and missions of the forces in response to Ques-tion 5”.

– As Question 9 (legal and administrative procedures protecting the rightsof servicemen) is closely related to Question 6 (procedures for the recruitmentor call-up of servicemen) and Question 7 (legislation or other relevant docu-ments governing exemptions from, or alternatives to compulsory militaryservice), a combination of these three questions – or the moving of Question9 to follow Questions 6 and 7 – might therefore be appropriate.

In addition, the report underscored that differentiation between the threecategories of military, paramilitary and security forces not provide any addedvalue in the absence of clear definitions and ignores the fact that many partici-pating states are gearing up for voluntary military service. Therefore the reportsuggested that the Questionnaire could be rationalised in order to avoid re-petition and cross-reference responses, some information (such as that concern-ing legislation) did not need to be provided on an annual basis if no changeshad occurred) as well as providing more targeted information.

The participating states examined the overview during the 3rd follow-upconference on the Code of Conduct (September 2002), but could not agree ona structural rearrangement of the Questionnaire. However, shortly after, theyonly decided to expand Question No 1 related to terrorism.234

In April 2003 they came to the conclusion that a more focused exchangeof information would contribute to enhancing the implementation of the Codeof Conduct. Accordingly, they agreed to restructure and rationalise the 1998

234 FSC.DEC/16/02 of 27 November 2002. See commentary of paragraph 6 of the Codeof Conduct.

100 PART I

Questionnaire. The technically updated Questionnaire (applicable as from April2004) is presented as follows:235

Question No 1(expansion offormer QuestionNo 1)

Appropriate measures to prevent and combat terrorism, inparticular participation international agreements to that end:(a) List of international agreements, including all UnitedNations conventions and protocols related to terrorism, towhich the participating state is a party;(b) Accession to and participation in other multilateral andbilateral agreements or measures undertaken to prevent andcombat terrorist activities;(c) National measures, to include pertinent legislation, takento implement the international agreements, conventions andprotocols cited above;(d) Information on national efforts to prevent and combatterrorism, including appropriate information on legislationbeyond United Nations conventions and protocols (e.g., per-taining to financing of terrorist groups);(e) Roles and missions of armed and security forces in pre-venting and combating terrorism;(paragraph 6 of the Code of Conduct)

Question No 2(redrafting offormer QuestionNo 2, minus item2 b)

Description of the national planning and decision-makingprocess – including the role of the parliament and ministries– for the determination/approval of(a) the military posture;(b) defence expenditure (paragraphs 13 and 22 of the Codeof Conduct )

235 FSC.DEC/4/03 of 9 April 2003


Question No 3(combination offormer QuestionsNo 4, 5 and 2 b )

Description of(a) constitutionally established procedures ensuring effectivedemocratic control of the military, paramilitary, and internalsecurity forces, as well as intelligence services, and thepolice;(b) constitutionally established authorities/institutions respons-ible for the democratic control of military, paramilitary andsecurity forces;(c) roles and missions of the military, paramilitary and secur-ity forces as well as controls to ensure that they act solelywithin the constitutional framework;(d) public access to information related to the armed forces;(paragraphs 20, 21 and 22 of the Code of Conduct)

Question No 4(= former Ques-tion No 3)

Stationing of armed forces on the territory of another par-ticipating states in accordance with their freely negotiatedagreements as well as in accordance with international law;

(paragraph 14 of the Code of Conduct)

Question No 5(combination offormer QuestionsNo 6, 7 and 9)

Description of(a) procedures for the recruitment or call-up of personnel forservice in the military, paramilitary, or security forces, ifapplicable;(b) exemptions or alternatives to compulsory militaryservice, if applicable;(c) legal and administrative procedures protecting the rightsof all forces personnel;(paragraphs 27, 28 and 33 of the Code of Conduct)


Instruction on international humanitarian law and other inter-national rules, conventions and commitments governingarmed conflict included in military training programmes andregulations (paragraphs 29 and 30 of the Code of Conduct)


Any other information

102 PART I

So far, five annual exchanges of information (1999-2003) have takenplace.236

c) Ad hoc follow-up conferences. The Code of Conduct did not provideeither for a tailor-made follow-up mechanism or for regular reviews.237 How-ever, upon the initiative of the European Union, the Forum for Security Co-operation decided to convene in Vienna, on an ad hoc basis, short follow-upconferences for the specific purpose of reviewing the implementation of theCode. So far, three such conferences have taken place, in 1997, 1999 and 2002.

The first follow-up conference (22-24 September 1997) allowed the OSCEparticipating states to inaugurate a direct exchange of information and opena lively dialogue on the experience gained so far in the implementation of theCode of Conduct.238

Held in the midst of the controversial debate surrounding NATO’s militaryintervention in Kosovo, the second follow-up conference (29-30 June 1999)was, admittedly, less conclusive.239 In the course of the proceedings, Russiasuggested the holding of a special joint meeting of the Forum for SecurityCooperation and the Permanent Council with the aim of reviewing the applic-ability of the Code of Conduct during the Kosovo conflict. Supported only byBelarus, the idea was not followed up.240

236 A detailed table on the 1999-2002 exchange of information is included in FSC.GAL/7/03/Rev.1/Corr.1 of 24 February, pp. 37-38 (Quarterly CPC Survey in CSBM informationexchanged as of 21 February 2003). For 2003 and 2004, see FSC.GAL/69/04 of 12 July2004, pp. 30-32.

237 However, the “European Union plus” and the Polish proposals suggested that theimplementation of the Code be reviewed on a regular basis (CSCE/FSC/SC.5/21 of 30June 1993, p. 15 and CSCE/FSC/SC.5/Rev.1 of 18 November 1992, p. 15).

238 Consolidated Summary of the 1997 proceedings: FSC.GAL/15/97 of 30 September 1997.Survey of suggestions tabled at the Conference: FSC.GAL/15/97 of 14 October 1997.

239 Consolidated Summary of the 1999 proceedings: FSC.GAL/82/99 of 9 July 1999. Surveyof suggestions tabled at the Conference: FSC.GAL/84/99/Rev.1 of 19 July 1999.

240 FSC.DEL/194/99 of 29 June 1999 (Russia) and FSC.DEL/205/99 of 30 June 1999(Belarus). The United states replied that actions undertaken by the NATO allies far fromcontravening the Code of Conduct actually sought to end the suffering Belgrade causedin Kosovo by its violations of human rights of the Kosovo Albanians – and that ex-haustive diplomatic efforts were made to find a political solution to the conflict asrequired in paragraph 19 (RC.DEL/182/99 of 28 September 1999).


As to the third follow-up conference (23-24 September 2002), it gaveoverwhelming attention to one element of the Code of Conduct: the fight againstterrorism.241

SECTION X[FINAL CLAUSES]

Summary contents of Section X: Politically binding nature of the Code ofConduct and date of its coming into force (§ 39). Undiminished value of existingOSCE commitments (§ 40). Reflection of the Code’s commitments in relevantnational internal documents, procedures or legal instruments (§ 41). Publicationand widespread dissemination of the Code at national level (§ 42).

The last Section comprehends final clauses indicating the nature and dateof the coming into force of the Code of Conduct (paragraph 39), confirmingthat the provisions of the latter do not alter the commitments existing in otherOSCE texts (paragraph 40) and obligating the OSCE participating states toreflect the Code of Conduct’s commitments in relevant national internal docu-ments, procedures or legal instruments (paragraph 41) as well as publishingand disseminating the instrument at national level (paragraph 42).

Paragraph 39[Politically binding nature of the Code and date of its coming into force]

The provisions adopted in this Code of Conduct are politically binding. Accord-ingly, this Code is not eligible for registration under Article 102 of the Charter ofthe United Nations. This Code will come into effect on 1 January 1995.

Paragraph 39 introduces two elements: the politically binding nature of theCode of Conduct and the date of its coming into force.

The first sentence underscores that, as in the case of any standard OSCEtext, the Code of Conduct is a “politically binding” document. In the expression“politically binding”, the crucial term is not the adverbial element (“politically”),but the verbal one (“binding”). This means that OSCE politically-bindingcommitments have to be respected as much as standard legal commitments.Indeed, in international relations, state behaviour is currently regulated by both

241 Consolidated Summary of the 2002 proceedings: FSC.GAL/122/02 of 8 October 2002.Survey of suggestions tabled at the Conference: FSC.GAL/123/02 of 8 October 2002.

104 PART I

legal and non-legal agreements: when entering into non-legal agreements statesintend, as a rule, to comply with them and expect the same behaviour fromeach other;242 the practice of follow-up and implementation procedures forsuch texts also supports that assumption.243 For governments, politically bind-ing agreements offer advantages. They do not have to be submitted to parlia-mentary approval and are easier to monitor.244 Furthermore, their very flexibil-ity allows governments to retain “some possibility of a way out where asituation is still fluid”.245

Being social rules, politically-binding obligations obviously have somecommon features with legal rules: they both formulate community expectationsand provide some stability in international relations by making state behaviourmore predictable.246 If one or several parties do not fulfil the common obliga-tions, the other parties are entitled to refuse to do so.247 In sum, within thecontext of the OSCE, an international commitment does not need to be legallybinding in order to have a binding character.248 The OSCE participating statesare expected to honour their politically-binding commitments. Violation of thelatter is inadmissible as for legal commitments. In such a case, the sanctionis only political and moral. However, as the most basic OSCE texts are signedat the level of heads of state and government, the political and moral cost ofviolation cannot be insignificant.

The second sentence of paragraph 39 recalls that, as a consequence of itspolitically binding nature, the Code of Conduct cannot be subject to the registra-tion procedure applicable to international legal treaties and agreements estab-lished by article 102 of the Charter of the United Nations.249 It does not pro-

242 Michael Bothe: “Legal and Non-Legal Norms – A Meaningful Distinction in InternationalRelations”, Netherlands Yearbook of International Law, Volume XI, 1980, pp. 68 and73 and 93.

243 Ibid., p. 85.244 Peter Koojmans: “The Code and International Law”, op. cit. 1996, pp. 35 and 37.245 Bothe, op. cit., p. 91. Such texts may also be used as proof of customary law, but cannot

directly be made the basis of a court judgment (ibid., p. 87).246 Ibid., p. 93.247 Ibid., p. 88.248 Peter Koojmans: “The Code and International Law”, Cooperative Security, the OSCE

and its Code of Conduct. Edited by Gert de Nooy. The Hague, Kluwer Law International,1996, p. 34 .

249 Article 102, paragraph 1, of the Charter of the United Nations: “Every treaty and everyinternational agreement entered into by any Member of the United Nations after thepresent Charter comes into force shall as soon as possible be registered with the Secret-ariat and published by it”.

COMMENTARY: SECTION X 105

vide, as was the case with the Helsinki Final Act (1975), for the circulationof the Code of Conduct as an official document of the United Nations.250

The third sentence of paragraph 39 indicates that the Code (which has beenadopted on 3 December 1994) will come into effect on 1 January 1995 – a datecoinciding with that of the entry into force of the change in name from “Confer-ence for Security and Cooperation in Europe” (CSCE) to “Organisation forSecurity and Cooperation in Europe” (OSCE) decided by the Budapest Docu-ment 1994.251 It does not mention, as suggested by the “European Union plus”proposal, that the Code of Conduct will have “unlimited duration unlessamended or ended by the consensus of the participating states”.252

In 1996-1997, many voices advocated the integration of the Code of Conductinto the so-called Security Model exercise.253 However, the OSCE participatingstates did not go farther than just reaffirming the validity of the Code of Con-duct in the Istanbul Charter for European Security (1999) which resulted fromthe Security Model exercise.254

Paragraph 40[Undiminished value of existing OSCE commitments]

Nothing in this Code alters the nature and content of the commitments undertakenin other OSCE documents.

This provision just confirms, along with the fourth paragraph of the Pre-amble of the Code, that the latter does not diminish the value of the obligationsenshrined in previous OSCE texts.

250 The third of the final clauses of the Helsinki Final Act provided that “the Governmentof the Republic of Finland is requested to transmit to the Secretary-General of the UnitedNations the text of this Final Act, which is not eligible for registration under Article102 of the Charter of the United Nations, with a view to its circulation to all the mem-bers of the Organisation as an official document of the United Nations”.

251 “ … the CSCE will henceforth be known as the Organisation for Security and Co-operation in Europe (OSCE). The change in name will be effective on 1 January 1995.As of this date, all references to the CSCE will henceforth be considered as referencesto the OSCE” (paragraph 1 of chapter I of the of the Budapest Decisions 1994).

252 CSCE/FSC/SC.21 of 30 June 1993, p. 16.253 REF.SEC/218/96 of 24 April 1996, p. 6, FSC.GAL/24/97 of 14 November 1997,

REF.SEC/136/97 of 3 March 1997, p. 6 and FSC.DEL/97 of 23 September 1997.254 Istanbul Charter for European Security (1999): paragraph 16 (first sentence) and para-

graph 30 (3rd sentence); See also the Istanbul Summit Declaration (1999): paragraph40.

106 PART I

Paragraph 41[Reflection of the Code’s commitments in relevant national internal documents,

procedures or legal instruments]The participating states will seek to ensure that their relevant internal documentsand procedures or where appropriate, legal instruments reflect the commitmentsmade in this Code.

Paragraph 41 deals, in mild terms, with the repercussion of the Code ofConduct at national level. It does not contain, contrary to what was envisagedduring the drafting process, any prescription that “national laws and practices,including regulations” should conform to the Code of Conduct.255 It onlyrefers to “relevant internal documents and procedures or, where appropriate,legal instruments” in which the OSCE participating states should “seek toensure” that the Code of Conduct’s commitments will be “reflected”.

In September 1997, according to the Conflict Prevention Centre, only twoparticipating states reflected the provisions of the Code of Conduct in theirnational defence legislation, while 24 others reported that no legislative amend-ments were necessary in this connection.256

Paragraph 42[Publication and widespread dissemination of the Code at national level]

The text of the Code will be published in each participating state, which willdisseminate it and make it known as widely as possible.

Replicating one of the final clauses of the Helsinki Final Act (1975), para-graph 42 commits each OSCE participating state to publish the Code of Conducton its territory, as well as to disseminate it and make it known as widely aspossible.257 It does not specify, as suggested by the “European Union plus”proposal, that the Code of Conduct’s dissemination be aimed at the “the publicas well as to national legislatures”.258

255 Paragraph (bb.4) of the Coordinator’s Perception of 3 June 1994 (DOC. 337). See alsoCSCE/FSC/SC.5/Rev.1 of 18 November 1992, p. 15 (Polish proposal) and CSCE/FSC/SC.8 of 16 December 1992, article 3 (Turkish proposal).

256 FSC.GAL/10/97 of 22 September 1997.257 The second of the final clauses of the Helsinki Final Act provided that “the text of this

Final Act will be published in each participating state, which will disseminate it andmake it known as widely as possible”.

258 CSCE/FSC/SC.21 of 30 June 1993 SC.21, p.15.

COMMENTARY: SECTION X 107

It does not either suggest that the OSCE participating states foster in theirrelations with non-participating states (the present Mediterranean and Asian“Partners for Cooperation”) respect for the principles and provisions of the Codeof Conduct.259

In September 1997, according to the Conflict Prevention Centre, 29 particip-ating states informed the OSCE about the translation of the Code of Conductinto national languages, as well as its dissemination and introduction into thetraining programmes of armed forces.260

Besides, a number of participating states organised training Seminars onthe Code of Conduct. The Netherlands and Germany took the lead in 1995-1996,soon followed by Sweden.261 Since 1998, Switzerland has organised, in theframework of NATO’s Partnership for Peace Programme, annual workshopson the Code of Conduct.

As to the OSCE as a whole, it provided tailor-made training seminars tocountries in democratic military transition such as Bosnia and Herzegovina(1996), Moldova (1997), Ukraine262 – and more recently to Central Asianand Caucasus states (2002-2003).

259 CSCE/FSC/SC.21 of 30 June 1993 SC.21, p.16. (“European Union plus” proposal) andCSCE/FSC/SC.8 of 16 December 1992, article 26 (Turkish proposal).

260 FSC.GAL/10/97 of 22 September 1997.261 Summary report on the Seminars held at Hamburg (August 1995), The Hague (December

1995) and Koblenz (May 1996): REF.FSC/375/96 of 2 October 1996.262 REF. FSC/502/96 of 19 December 1996 (Bosnia and Herzegovina) and FSC.GAL/10/97

of 22 September 1997 (Ukraine).

BIBLIOGRAPHY

The paragraph-by-paragraph Commentary on the Code of Conduct is basedon two main sets of primary sources. The first one consists of the official draftproposals on the basis of which the negotiation of the Code of Conduct wasundertaken.265 The second set includes the numerous papers issued by theCoordinator of the drafting process, James E. Hinds. This set is made up of“perception papers” and “drafting suggestions” either of a comprehensive scopeor offering compilations on special topics such as arms control and disarmament,democratic control of armed forces, etc. While being of a basically informalnature, a number of them have been issued under an official serial classificationnumber (“DOC”).

Both authors express their deep gratitude for the documentary assistanceprovided to them by Ms. Alice Nemcova and the staff of the OSCE PragueOffice.

Official draft proposals

The seven official draft proposals on the basis of which the negotiation ofthe Code of Conduct was undertaken (and which are reproduced as Annexes3 to 9 to the Commentary) are the following:

265 All of them are reproduced as Annexes 3 and 9 in this Commentary.



110 BIBLIOGRAPHY (PART I)

1. Proposal submitted by Poland on a “CSCE Code of Conduct in the Fieldof Security”: CSCE/FSC/SC.5/Rev.1 of 18 November 1992 (1st version:CSCE/FSC/SC.5 of 11 November 1992).266

2. Proposal submitted by the Member States of the European Union as wellas Canada, Iceland and Norway (“European plus proposal”) on a “CSCECode of Conduct Governing Mutual Relations Between Participating Statesin the Field of Security”: CSCE/FSC/SC.21 of 30 June 1993 (1st versionentitled “Elements for a CSCE Code of Conduct Governing Mutual Re-lations Between Participating States in the Field of Security: CSCE/FSC/SC.7 of 16 December 1992).

3. Proposal submitted by Austria and Hungary on a “CSCE Code of ConductGoverning the Behaviour of the Participating States Towards Each Otherand of Governments towards their citizens”: CSCE/FSC/SC.22 of 15 Sep-tember 1993.

4. Proposal submitted by Turkey on a “CSCE Code of Conduct Governingthe Mutual Relations of the CSCE Participating States in the Field ofSecurity”: CSCE/FSC/SC.8 of 16 December 1992.

5. Proposal submitted by Austria, Hungary and Poland concerning “Imple-mentation Provisions for a Code of Conduct”: CSCE/FSC/SC.17 of 5 May1993.

6. Proposal submitted by Hungary on “The Democratic Political Control ofthe Armed Forces and of Their Use”: CSCE/FSC/SC.25 of 23 February1994.

7. Working Document submitted by France regarding the structure of a Codeof Conduct: CSCE/FSC/SC/B.2 of 3 June 1993.

Coordinator’s Papers

The Coordinator of the drafting process (James E. Hinds) issued over 40papers consisting of compilations and/or drafting suggestions:1. Code of Conduct. State of the Art as per 31 December 1992 in the CSCE

Negotiations – A comprehensive synoptic comparison of the Polish, “Euro-pean Union plus” and Turkish draft proposals.

266 There is also an unnumbered Food for Thought Paper on “Possible Structure ofthe Code of Conduct” jointly tabled by Poland and the Russian Federation on 23March 1993.

BIBLIOGRAPHY (PART I) 111

2. Compilation of provisions relating to arms control and disarmament fromproposals on a CSCE Code of Conduct tabled in the FSC, by Poland, the15 and Turkey (Working Group B, Non-paper, 11 February 1993).

3. Code of Conduct. Comparison of Texts [tabled by Poland, the “EuropeanUnion plus” and Turkey] – synoptic table, 18 February 1993.

4. Compilation of provisions relating to democratic control of the armedforces from proposals on a CSCE Code of Conduct tabled in the FSC, byPoland, the 15 and Turkey (Working Group B, Non-paper, 8 March 1993).

5. Compilation of provisions relating to mutual relations among states in thefield of security from proposals on a CSCE Code of Conduct tabled inthe FSC, by Poland, the 15 and Turkey (Working Group B, Non-paper,19 March 1993).

6. Compilation of provisions relating to purpose, reaffirmation, review andimplementation from proposals on a CSCE Code of Conduct tabled in theFSC, by Poland, the 15 and Turkey (Working Group B, Non-paper, 26April 1993).

7. Compilation of provisions relating to democracy and security from pro-posals on a CSCE Code of Conduct tabled in the FSC, by Poland, the 15and Turkey (Working Group B, Non-paper, 26 April 1993).

8. Compilation of provisions relating to the use of armed force from proposalson a CSCE Code of Conduct tabled in the FSC, by Poland, the 15 andTurkey (Working Group B, Non-paper, 26 April 1993).

9. Coordinator’s working texts and reference papers on the human dimension,human rights and civil rights and rights of national minorities (16 Decem-ber 1993).

10. Coordinator’s working texts and reference papers on arms control anddisarmament (17 January 1994).

11. Coordinator’s working texts and reference papers on economic cooperation,stationing of forces, borders, peaceful evolution of states, regional andtransborder cooperation and environment (28 January 1994).

12. Coordinator’s working texts and reference papers on early warning, conflictprevention, crisis management, peacekeeping and other CSCE missions(4 February 1994).

13. Coordinator’s working texts and reference papers on humanitarian activ-ities, democratic control of armed forces, irregular forces and use of armedforces (10 February 1994).

14. Coordinator’s working texts and reference papers on internal security,public emergency, confirmation of existing norms and implementationmechanism (18 February 1994).


15. Set of texts related to 37 items (11 March 1994).16. Coordinator’s perception paper containing suggestions on indivisibility

of security and comprehensive security (DOC. 84 of 19 April 1994).17. Memorandum from the Coordinator to all FSC delegations convening an

informal open-ended meeting of the “Coordinator’s Friends” (DOC. 136of 28 April 1994).

18. Memorandum from the Coordinator to all FSC delegations convening aninformal open-ended meeting of the “Coordinator’s Friends” (DOC. 141of 29 April 1994).

19. Coordinator’s perception paper on sovereign rights of states in the fieldof security (DOC. 171 of 5 May 1994).

20. Coordinator’s perception paper on basic obligations in the field of security(DOC. 188 of 9 May 1994).

21. Coordinator’s status report (DOC. 262 of 25 May 1994).22. Coordinator’s suggestions on cooperative security and solidarity in the

context of the right to self-defence (DOC. 302 of 1 June 1994).23. Consolidated draft text of the Code of Conduct: 3rd revision (DOC. 319

of 6 June 1994).24. Coordinator’s perception on the democratic political control of armed forces

(DOC. 337 of 8 June 1994).25. Coordinator’s perception on the control of armed forces and use of armed

forces (DOC. 465 of 4 July 1994).26. Consolidated draft text of the Code of Conduct: 4th revision (DOC. 551

of 22 July 1994).27. Coordinator’s perception on rights and obligations in the field of security:

sovereignty and territorial integrity and refraining from the threat or useof force (DOC. 715/94 of 14 September 1994).267

28. Coordinator’s perception on rights and obligations/commitments in thefield of security: sovereignty and territorial integrity, refraining from thethreat or use of force and inviolability of frontiers (DOC. 729 of 19 Sep-tember 1994).

29. Additions to the Coordinator’s 4th revision of the draft Code of Conducttext (DOC. 766/94, undated).

30. Coordinator’s perception on rights and obligations/commitments in thefield of security (DOC. 810/94 of 29 September 1994).

267 This document also includes a paper entitled “Coordinator’s desperation based onendless discussion concerning the scope of the Code of Conduct”.


31. Coordinator’s drafting suggestion on the control of armed forces (DOC.936/94 of 20 October 1994).

32. Coordinator’s perception on the democratic control of armed forces (DOC.954/94 of 24 October 1994).

33. 5th Revision of the draft Code of Conduct text and 6th revision of thesection related to the democratic control of armed forces (DOC. 959/94of 25 October 1994).

34. November 1994 version of the Code of Conduct (DOC. 1015/94 of 4November 1994).

35. November 1994 version of the Code of Conduct (DOC. 1027/94 of 4November 1994).

36. Letter from the Coordinator forwarding the November 1994 version ofthe Code of Conduct to the Chairman of the FSC Special Committee(DOC. 1028/94 of 4 November 1994).268

37. Coordinator’s perception and suggestions on the use of armed forces (10November 1994).

38. Coordinator’s perception – working paper on the democratic control ofarmed forces (11 November 1994).

39. Coordinator’s perception on the democratic control of armed forces (14November 1994).

40. Coordinator’s perception on the democratic control of armed forces (15November 1994).

41. Coordinator’s perception on the use of armed forces, 15 November 1994.42. Consolidated text of the Code of Conduct: Coordinator’s Perception (23

November 1994).43. Consolidated text of the Code of Conduct: Coordinator’s perception (1

December 1994).44. Consolidated text of the Code of Conduct: Coordinator’s perception (2

December 1994.269

268 The letter also mentions that a proposal titled “Drafting Suggestions” and distributedon 31 October 1994 (DOC. 994/94) by the delegation of Armenia “has not yet beendiscussed”.

269 Non-paper including two versions respectively bearing the indications “2 a.m.” and“4.45 p.m.”.


Secondary sources

Scholarly works on the OSCE Code of Conduct in English are rare. So far,only one book has specifically been devoted to the subject: Cooperative Secur-ity, the OSCE and its Code of Conduct. Edited by Gert de Nooy. The Hague,Kluwer Law International, 1996, 158 p.). It includes contributions from Victor-Yves Ghebali (“Introducing the Code”), Adam Kobieracki (“Negotiating theCode: A Polish View”), Peter von Butler (“Negotiating the Code: A GermanView”), Crispin Hain-Cole (“Negotiating the Code: A British View”, PeterKoojmans (“The Code and International Law”), David Raic (The Code, Human-itarian Law, and Human Rights”), Michael Lucas (“The Code, Early Warningand Conflict prevention”), Jeffrey Simon (“The Code and Civil-Military Re-lations: The Polish Case”), Stephen Blank (“The Code and Civil-MilitaryRelations: The Russian Case”), Ulrich Hundt (“The Code and Civil-MilitaryRelations: The German Case”), Heinz Vetschera (“Implementing the Code: TheWay Ahead”) and Gert de Nooy (“Summary of main Conclusions”).

English articles in scientific journals are also limited in number:– Ortwin Hennig: “The Code of Conduct on Politico-Military Aspects of

Security”, OSCE Yearbook, Volume 1-2, 1995-1996, pp. 273-289 ;270

– Jonathan Dean: “The OSCE Code of Conduct on Politico-Military Aspectsof Security: A Good Idea, Imperfectly Executed, Weakly Followed Up”,OSCE Yearbook, Volume 1-2, 1995-1996, pp. 291-297;

– Michael R. Lucas: “The War in Chechnya and the OSCE Code of Conduct”,Helsinki Monitor, Vol. 6, 1995, No 2 , pp. 32-42;

– Rienk Terpstra: “The OSCE of Conduct. Setting New Standards in thePolitico-Military Field?”, Helsinki Monitor, Vol. 7, 1996, No 1, pp. 27-41;

– Victor-Yves Ghebali: “The Normative Contribution of the OSCE to theDemocratic Control of Armed Forces: The Added Value of the 1994 Codeof Conduct on Military Aspects of Security” – Towards Security SectorReform in Post-Cold War Europe. A Framework for Assessment. Editedby Wilhelm Germann – and Timothy Edmunds. Baden-Baden, NomosVerlagsgesellschaft, 2003, pp. 133-144;

270 Footnote 3 of Hennig’s article signals that, in early 1995, the German PermanentMission to the OSCE produced – for internal use – a legal commentary of the Codeof Conduct in German, obtainable on request from the German Foreign Ministry.


– Victor-Yves Ghebali: “Revisiting the OSCE Code of Conduct on MilitaryAspects of Security”. Challenges of Security Sector Governance. Editedby Heiner Hänggi and Theodor H. Winkler – Münter, LIT Verlag, 2003,pp. 85-109.271

271 In French, mention should be made of Victor-Yves Ghebali’s “Analyse du Codede conduite politico-militaire de la CSCE” (Les multiples aspects des relationsinternationales. Recueil d’études à la mémoire du Professeur Jean Siotis. Brussels,Bruylant, 1995, pp. 121-131).

ANNEXES TO PART I

ANNEX 1

PROPOSAL SUBMITTED BY HUNGARY AND THE UNITED STATES, ATTHE MOSCOW CONFERENCE ON THE HUMAN DIMENSION OF THECSCE, CONCERNING “CIVILIAN CONTROL OVER MILITARY AND

SECURITY FORCES”(CSCE/CHDM/.43 of 26 September 1991)

Recalling their commitment in the Document of the Copenhagen Meeting that militaryforces and the police will be under the control of and accountable to the civil authorities,and

Determined to create and maintain effective democratic structures guaranteeing thatforce will not be used against innocent civilians,

The participating states decide:– to ensure that their military and paramilitary forces, internal security and intel-

ligence services, and the police are subject to the effective direction and control of theappropriate civil authorities;

– to maintain and, where necessary, to strengthen executive control over the useof military and paramilitary forces as well as the activities of the internal security andintelligence services and the police;

– to create, wherever they do not already exist, and to maintain effective arrange-ments for legislative oversight of all such forces, services and activities;

– not to create or permit such forces, services or activities to function beyond thereach of executive control or legislative oversight.



118 ANNEXES TO PART I

ANNEX 2

PROPOSAL SUBMITTED BY FRANCE, GERMANY AND OTHERPARTICIPATING STATES,272 AT THE 1992 HELSINKI FOLLOW-UPMEETING, CONCERNING A “CODE OF CONDUCT ON SECURITY

RELATIONSHIPS AMONG PARTICIPATING STATES”(CSCE/HM/WG2/1 of 19 May 1992 and CSCE/HM/WG2/1/Add.1 of 16 June

1992)

1. The new situation prevailing in Europe calls for a strengthening of the role of theCSCE, particularly in the field of security.

Starting from the very substantial achievements of the CSCE in this area, and witha view to clarifying and developing them whenever possible, the time has cone to takea fresh qualitative step forward in order to strengthen stability and security in Europe.

The renewed commitment by the participating states to abide by common rules ofbehaviour and to cooperate in giving them full effect will provide the CSCE and itsorgans with a firmer basis for action.

2. With that in mind, we propose the drawing up of a code of conduct which theparticipating states would undertake to abide by in their mutual relations. Such a codeof conduct would incorporate the following features:

– The reaffirmation of the commitments entered into by virtue, notably, of the FinalAct and the Charter of Paris, relating to the politico-military aspects of security –especially the commitment to refrain from the threat or use of force – and their develop-ment in the form of concrete rules of behaviour;

– The definition of new rules capable, in particular, of responding to the growinginteraction between the domestic behaviour of states and their mutual relations;

– Mutual assurances concerning implementation of, and provision of support to,CSCE mechanisms.

This code of conduct will take into account other proposals to strengthen thedecision-making and execution capabilities of the CSCE.

3. It is for the heads of state and government to provide the necessary impetus tothe establishment of this code of conduct – to emerge from a thorough and open dialoguewithin the framework of the CSCE Forum for security cooperation after the close ofthe Helsinki Meeting.

Such an exercise would show the value of giving, at the appropriate time, thecommon rules and their associated assurances the form of a security treaty.

We therefore propose that the Helsinki Summit instruct the negotiators in Viennato adopt this course from the outset of their work. To that end, their terms of referenceshould provide that:

272 Belgium, Bulgaria, Estonia, France/Germany, Greece, Ireland, Malta, Poland,Romania, Russian Federation, Spain and Kyrgyzstan.

ANNEXES TO PART I 119

“The participating states will undertake consultations with a view to strengtheningthe role of the CSCE, by establishing a code of conduct governing their mutualrelations in the field of security, which could, in time, be further developed intoa CSCE security treaty.”

ANNEX 3

PROPOSAL SUBMITTED BY POLAND ON A “CSCE CODE OF CONDUCT INTHE FIELD OF SECURITY”

(CSCE/FSC/SC.5/Rev.1 of 18 November 1992)

I. GENERAL CONSIDERATIONS(Preamble)The participating states of the CSCE,

Determined to enhance stability and security in Europe through the strengtheningofthe CSCE principles, common values and shared convictions,

Aiming to give expression to the cooperative approach to security characterisingthe qualitatively new type of relations within the CSCE community of states,

Resolved to develop cooperative security structures in Europe,Convinced of the need to strengthen the pluralistic and democratic nature of the

new order of relations in the CSCE area,Determined to facilitate a concerted response to the security problems and challenges

on the basis of a common assessment of each others’ intentions, policies and behaviourin the security field,

Establish hereby the norms guiding their conduct and mutual relations in the fieldof security.

(Reaffirmation and strengthening of the principle of the non-use of force)The participating states, in adopting the present code of conduct, recall their obliga-

tions under the Charter of the United Nations and reaffirm their commitment under theHelsinki Final Act to refrain from the threat or use of force against the territorial integrityor political independence of any state, or in any other manner inconsistent with thepurposes and principles of those documents.

The present code of conduct is aimed at building upon and amplifying this principleand ensuring its full and effective implementation. Through this code the participatingstates reaffirm at the same time their determination to expand and strengthen friendlyrelations among them and to promote friendship among their people, while also confirm-ing that in their CSCE community of states there are no hostile intentions, conflictingvalues or aims which may divide them.


II. NORMS GUIDING DEFENCE POLICIES AND POSTURES

1. Defensive posture of the armed forces, sufficiency and restraint in militarymatters

(Sufficiency)The participating states will keep the levels of their armed forces to the minimumcommensurate with legitimate common or individual security needs within Europe andbeyond.

They will determine those needs on the basis of their domestic democraticprocedures, in accordance with their obligations under international law, taking intoaccount legitimate security concerns of other states, in particular their neighbours. Theywill refrain from any attempt to build military superiority allowing any single state todominate militarily the CSCE area.

(Defensive doctrine)They will base their military doctrines on defensive principles. The structure, equipment,state of readiness and training of the armed forces in Europe will be oriented to servedefensive purposes.

(Restraint in planning)The participating states will approach with restraint their defence needs in planningmilitary expenditures, arms procurement and infrastructure upgrading and in other aspectsof the maintenance and development of their military potential.

(Arms sales controls)The participating states will follow a responsible approach to international armamentstransfers and will cooperate in strengthening multilateral non-proliferation regimes. Theywill prevent, through appropriate legislation and enforcement procedures, illegal armstransfers.

(Ban on promotion of war)The participating states will refrain from any promotion of wars of aggression. Theywill not allow their territories to be used in contravention of this principle.

2. Democratic control of the armed forces

(Constitutional control and accountability)Each participating state will maintain an effective constitutional and legal frameworkfor the status, functioning and use of the armed forces. This will include, in particular,the democratic procedure and openness of budgeting military expenditures and of theaccountability of expenses.


No participating state will allow its armed forces to serve the interests of a singleparticular political grouping or ideological system.

(Primacy of democratic government)The participating states will ensure the primacy of the democratic civilian institutionsover the armed forces. They will, in particular, ensure that the government decision-making process extends to all aspects of the functioning of the armed forces and thatdecisions applying to the armed forces and their implementation are subject to parlia-mentary control.

(Public transparency)Each participating state will ensure, with due regard to the specific requirements ofmilitary matters, transparency of and public access to matters related to the functioningof its armed forces.

(Paramilitary)Each participating state will execute full constitutional, legal and political control overthe functioning of paramilitary organisations. Each participating state will refrain fromallowing paramilitary organisations to be established or to serve the particular politicalaims of a grouping or organisation to gain or maintain political power. The participatingstates will not use paramilitary organisations to circumvent limitations concerning theuse and size of their armed forces.

3. Internal organisation and functioning of the armed forces in accordance withinternational law and humanitarian principles

(Responsibility of personnel under law)They will ensure that the personnel of their armed forces are equipped, trained andcommanded in accordance with international law. Orders violating those principles willnot be recognised as valid. Persons responsible for violating those principles will beheld accountable by each participating state.

(Exercise of human rights)Each participating state will ensure the effective exercise of human rights and funda-mental freedoms by personnel serving with its armed forces in conformity with therequirements of the military service.

(Humanitarian international law)The participating states will develop their laws and regulations concerning the statusof military personnel, their rights and obligations, in conformity with internationalhumanitarian law and CSCE standards in this field. They will ensure the applicabilityof the respective CSCE provisions and mechanisms to the humanitarian and social aspectof the functioning of the armed forces.


(Recruitment to military service)Each participating state will ensure that its laws and practice relating to the recruitmentof personnel to serve in the armed forces are in conformity with humanitarian principlesand international law.

4. Peaceful domestic use of the armed forces

(Use of armed forces in a state of emergency)Each participating state will use its military personnel for domestic purposes, in particularto assist in relief operations or in restoring public order, only on the basis of strictconstitutional procedures and within the limits prescribed by international law.

(Non-use of force for political means)The participating states will not use armed forces to limit the exercise of the civil rightsof their people and, in particular, the right of political organisations, including thoserepresenting national minorities, to advocate, provided they do not use or encouragerecourse to violence, any constitutional change they consider appropriate. The partici-pating states will not use or encourage violence against such organisations.

(Non-use of force against self-determination)Accordingly, the participating states will refrain from undertaking any use of force oracts of coercion contrary to the principle of the self-determination of peoples, whenpursued peacefully. The use of force to deprive peoples of their national identity con-stitutes a violation of their inherent rights.

Each participating state will ensure that all domestic disputes that may arise betweengroups of its population and their organisations are settled by peaceful means. Theparticipating states will not recognise changes in the status of their internal territorialentities and their borders which result from the use of force.

(International law and civil war)The participating states reaffirm that international humanitarian law of must be appliedin civil wars and domestic conflicts.

III. NORMS UNDERLYING THE COOPERATIVE APPROACH TO INTER-NATIONAL SECURITY

5. Indivisibility of security

The participating states recognise that security is indivisible and that the security ofevery participating state is inseparably linked to that of all the others.


(Sovereign equality)The participating states will pursue their security interests as sovereign and independentstates and on the basis of full equality. They are all equal before the law. They willrespect the right of each of them to enjoy all rights inherent in full sovereignty bothin the field of security and in accordance with international law.

They will ensure that the territorial integrity and political independence of eachparticipating state are inviolable. Accordingly, no foreign forces will be stationed onthe territory of a participating state without that state’s explicit consent. They will bewithdrawn immediately if such consent has been invalidated.

(Equal respect for security interests)The participating states will respect the security interests of all the CSCE states on thebasis of equality. Each of them will determine its security interest itself, while takinginto consideration the interests of others. They will consider the implications that theiractions may have on the security of others.

(Undiminished security)While strengthening common security and stability, the participating states will ensurethat the security of each of them is not adversely affected. No state in the CSCE com-munity will seek to strengthen its own security at the expense of that of others.

6. Promotion of arms control, security dialogue and cooperation

(Promotion of arms control)The participating states will promote arms control, disarmament, confidence- andsecurity-building through full implementation of their international commitments andthe elaboration of new measures. They will fully use and develop the CSCE instrumentsand frameworks existing in this field.

(Dialogue and cooperation)They will conduct regular consultation and permanent security dialogue, maintain closecontact and cooperate on matters related to security.

7. Freedom to choose security arrangements

(Freedom of arrangements)The participating states recall that, as provided for in the Helsinki Final Act, they havethe right to belong or not to belong to international organisations and to be or not tobe a party to bilateral or multilateral treaties, including the right to be or not to be aparty to treaties of alliance; they also have the right to neutrality.

They have the right to change their status in this respect as they deem necessary.Appropriate arrangements by them or among them will be concluded only on the basis


of the principle of sovereign equality. The participating states undertake to respect theirchoice of security arrangements.

(Interlocking arrangements)The participating states will pursue their efforts to build a lasting and peaceful orderon the basis of mutually reinforcing institutions and harmony of arrangements. Theywill provide information on their arrangements and promote contacts with and amonginstitutions.

(NATO)The participating states recognise the special role of the North Atlantic TreatyOrganisation (NATO) as an integral aspect for security in Europe providing one of theindispensable foundations for a stable security environment.

(WEU)They take note of the role of the Western European Union (WEU) as the European pillarof the Atlantic Alliance.

(EC)They also emphasise in this context the role of the European Community in maintainingstability on the continent. The participating states will consider how best to use theresources and potential offered by those organisations for the promotion of the commonaims of the CSCE community.

(Regional arrangements)The participating states recognise the role of regional arrangements in dialogue andcooperation. In developing regional and other forms of cooperation in the security fieldthe participating states will ensure that their aims and actions are in full conformitywith the objectives and principles of the Charter of the United Nations and CSCEdocuments.

IV. PRINCIPLES GUIDING CONDUCT IN THE PREVENTION OF CONFLICTSAND OF THE USE OF FORCE

8. Conflict prevention and peaceful settlement of disputes

(Use of CP and CM mechanisms)The participating states will seek effective ways of preventing, through political means,conflicts that may emerge. Those political solutions will be based on the principles ofthe CSCE Final Act and the parties concerned will display the necessary political will.

The participating states will make intensive and effective use of the mechanismsfor early warning, conflict prevention and crisis management offered by the CSCE and


will cooperate in implementing them. They will further develop the practical means,including relevant techniques, at their disposal.

The participating states reaffirm their commitment to the principle of the peacefulsettlement of disputes, which is an essential complement to the duty of states to refrainfrom the threat or use of force, both being essential factors for the maintenance andconsolidation of peace and security.

9. Refraining from hostile action or any other action which may aggravate thesituation

(No manifestation of force)The participating states reaffirm their commitment to refrain from any manifestationof force for the purpose of inducing any other state to renounce the full exercise of itssovereign rights.

(No support for subversive actions)The participating states reaffirm their commitment to prevent and combat terrorism,including prohibition on their territories of illegal activities, including subversive actionsdirected against other States and their citizens. They will refrain from organizing orencouraging organizations of irregular forces or armed units, including mercenaries,for the purpose of invading another participating State. They undertake to co-operatein establishing effective international instruments in this respect.

(Non-exacerbation of conflicts)The participating states will refrain from organising, inciting, supporting or participatingin acts of domestic strife or terrorism in another participating state.

They will, whatever their links with the population involved in such domesticconflict, encourage the amicable resolution of the crisis. They will refrain from advocat-ing changes in the territorial and/or political status of that state in a way incompatiblewith international law and CSCE principles.

V. NORMS GUIDING CONDUCT IN THE EVENT OF A CONFLICT

10. Condemnation of acts in violation of the principle of the non-use of force

(Use of force as international law)The participating states reaffirm that non-compliance with the a violation of obligationof refraining from the threat or use of force constitutes a violation of international law.

(Condemnation of aggression)They reaffirm in particular that war of aggression is a crime against peace. Aggressionentails international responsibility. The participating states undertake to base all their


actions in situations involving violation of the principle of the non-use of force on theabove assumptions.

The participating states will promptly, upon request and in consultation with eachother, seek to establish the fact of the violation and give expression to their concernabout the conflict.

No consideration may be invoked to warrant recourse to the threat or use of forcein contravention of the principle of the non-use of force.

(Non-validity of the acts resulting from the use of force)No occupation or acquisition of territory resulting from the threat or use of force incontravention of international law will be recognised as legal. The participating stateswill not recognise the validity of any other acts undertaken in contravention of thisprinciple.

(Personal accountability for acts of violence)The participating states will hold all responsible for acts of violence personally account-able for their actions that are in contravention of the relevant norms of internationalhumanitarian law.

11. Solidarity with victims of the violation of the principle of the non-use of force

(Individual or collective self-defence)The participating states recall the inherent right of individual or collective self-defencein the event of an armed attack, as set forth in the Charter of the United Nations.

(Emergency consultations)The participating states will further develop the CSCE’s possibilities for serving as aforum for emergency communication and consultation in order to enable the states inneed to share their concerns and problems as well as seek solidarity and assistance.

(Assistance)The participating states recognise the right of any one of them to seek, in accordancewith the principle of sovereign equality, such assistance in the realisation of its rightto self-defence as it may deem appropriate. They undertake to consider duly suchrequests and reply accordingly, as they deem appropriate.

(Lend-lease)They will, in particular, consider favourably – to the extent possible – requests forpurchases of material and equipment on favourable lending conditions.

(Humanitarian assistance)The participating states will exert every effort to ensure that basic human needs aremet and that humanitarian commitments are respected in the event of a conflict. They


will contribute to, support and facilitate, as appropriate, the delivery of the necessaryassistance to the population suffering from hostilities. They will ensure, in particular,the establishment and effective maintenance of humanitarian cease-fires, safe havensand humanitarian corridors.

(No support for the violators of the non-use of force)The participating states will refrain from extending any assistance to the state responsiblefor the violation of the principle of the non-use of force. They will, in particular, respectall possible sanctions, including embargo, undertaken against that state in accordancewith international law.

12. Cooperation in restoring international peace and stability

(Defence of CSCE values)The participating states will promptly consult among each other on how their commonlyshared values of democracy, respect for human rights, the rule of law, economic libertyand others have been affected by the conflict immediately after it has arisen. They stressin this context that the constant and gross violation of these values and of CSCEprinciples is incompatible with participating in the CSCE. They reaffirm the un-diminished validity of the CSCE commitments in times of conflict.

(Concerted action)The CSCE participating states will consider possibilities for concerted action in defenceof the above values and, if such action is deemed appropriate, will determine specificforms and mechanisms for conducting it.

(Resort to other organisations)The participating states may request other organisations such as the EC, NATO andthe WEU to cooperate with the CSCE or support it in a specific manner in its actionsaimed at restoring peace and stability.

(Use of mechanisms)The participating states will consult on how best to use the peace-restoring mechanismsof the United Nations and to cooperate in implementing them.

They reaffirm that the CSCE will work together closely with the United Nationsin preventing and settling conflicts on the basis of the arrangements of Chapter VIIIof the Charter of the United Nations.

They reaffirm their commitment to support and facilitate the activity of peacemakingand other missions.

They will ensure the full and effective application of humanitarian internationallaw to the conflict.

The participating states will facilitate and respect effective cessation of hostilities.


(Reconciliation)After settling the conflict and in overcoming its legacy, the participating states willfollow the principles of reconciliation and forgiveness to restore stability and confidence.

VI. CONCLUDING ARRANGEMENTS

Nothing in the present code should be interpreted as affecting the provisions of theCharter of the United Nations or any agreement binding under international law priorto the Charter or the prerogatives of the United Nations Security Council.

The original of the code drawn up in ... will be transmitted to the Government of..., which will retain it in its archives. Each of the participating states will receive fromthe Government of ... a true copy of the code.

The text of the code will be published in each participating state, which willdisseminate it and make it known as widely as possible.

The Government of ... is requested to transmit to the Secretary General of the UnitedNations the text of the code which is not eligible for registration under Article 102 ofthe Charter of the United Nations with a view to its circulation to all members of theOrganisation as an official document of the United Nations.

The Government of ... is also requested to transmit the text of the code to all inter-national organisations mentioned in the text.

Wherefore we, the undersigned High Representatives of the participating states,mindful of the high political significance we attach to the code and declaring ourdetermination to act in accordance with it, have subscribed our signatures below.

VII. PROVISIONS RELATED TO GIVING EFFECT TO CERTAIN OF THEABOVE NORMS

(Annex)

[To be developed including the following provisions:]- joint periodical review of the application of the code, including consideration of

measures to improve its effectiveness;- mechanisms for ensuring the conformity of domestic laws and practice with commit-

ments under the code;- general possibility for extending the mandate of CSCE fact-finding missions to cover

the problems resulting from the implementation of the code, including humanitarianaspects of military service;

- specific provisions relating to the observance of the code by political, territorialand ethnic entities involved in domestic crises;

- provisions for ensuring accountability of persons responsible for the acts of violenceand the violation of humanitarian international law (international court);


- provisions for the conduct of consultations to assess the conflict and the possibilitiesfor concerted action.

ANNEX 4

PROPOSAL SUBMITTED BY THE MEMBER STATES OF THE EUROPEANCOMMUNITY, ICELAND AND NORWAY ON A “CSCE CODE OF CONDUCT

GOVERNING MUTUAL RELATIONS BETWEEN PARTICIPATING STATESIN THE FIELD OF SECURITY”

(CSCE/FSC/SC.21 of 30 June 1993)

PreambleThe participating states of the Conference on Security and Cooperation in Europe(CSCE),

Recognising that the new political and security environment in Europe and the newdimensions to relations between participating states require expression in a Code ofConduct governing their mutual relations in the field of security,

Acknowledging that, in developing this Code, they should take full account of thecommitment in the Helsinki Document 1992 to establish among themselves new securityrelations based upon a common and cooperative approach to security,

Recognising the need to seek new means to promote stability in the CSCE areaas a whole, within regions, and within states,

Acknowledging the need to strengthen the pluralistic and democratic nature of thepolitical system of each country in the framework of the new security order in the CSCEarea, and

Recognising that this new situation demands a greater precision in, and elaborationof new norms for the behaviour of states to one another, for control and use of armedforces and for the internal behaviour of governments,

Have decided upon the following CSCE Code of Conduct Governing MutualRelations between Participating States in the Field of Security:

PART I: INTRODUCTION CONFIRMATION OF EXISTING NORMS

Relation to Existing Norms and CommitmentsThe Code builds upon and is intended to complement existing internationally

recognised principles and commitments and in no way prejudices their status or content.- The participating states stress, therefore, that the need for the Code does not

diminish the validity of existing principles, provisions and procedures developed withinthe CSCE, as enshrined in the Helsinki Final Act, the Charter of Paris for a New Europe,the Vienna Document 1992, the Helsinki Document 1992 and other relevant CSCEdocuments.


- They reaffirm in particular the continuing validity of the 10 principles in theHelsinki Final Act and their determination to respect them. They recall that all theseprinciples are of primary significance and accordingly confirm that they will apply themequally and unreservedly in all aspects to their mutual relations and cooperation, eachof them being interpreted taking into account the others.

- The participating states confirm that nothing in the Code prejudices the provisionsof the Charter of the United Nations or other principles or provisions of internationallaw, in particular the Hague Conventions of 1907 and 1954 and the Geneva Conventionsof 1929, 1949 and 1980 and the Additional Protocols of 1977.

Other Principles Relevant to SecurityThe participating states reaffirm their determination to promote, respect and protect

human rights, fundamental freedoms, democracy and the rule of law and to promotetolerance and peaceful resolution of disputes, in accordance with international law andexisting CSCE commitments, as a fundamental basis for security within and amongall participating states.

- As part of the above commitment, participating states confirm that they will respectthe human rights of all persons on their territory. In particular, they will promote andprotect the rights of persons belonging to national minorities, including their right toexpress their identity, and where appropriate to enjoy local autonomy.

- In this spirit, they stress the obligation of persons belonging to majority groupsto respect the rights of persons belonging to minorities.

- Likewise, the participating states stress the need for persons belonging to minoritiesto respect the rights of others.

- They further reaffirm their determination to expand and strengthen friendly relationsbetween them and to promote friendship and cooperation among their peoples. Inparticular, they recognise the need to base mutual relations on positive interaction,cooperation and friendship in order to avoid disputes and to resolve them peacefullywhen the need arises.

PART II: PRINCIPLES GOVERNING SECURITY RELATIONS

Sovereignty and Territorial IntegrityThe participating states reaffirm their respect for each other’s sovereign equality

and individuality as well as all the rights inherent in and encompassed by its sovereignty,including in particular the right of every state to juridical equality, to territorial integrityand to freedom and political independence in accordance with relevant internationalnorms and principles.

Refraining from the Threat or Use of ForceThe participating states recall their obligation to refrain from the threat or use of

force against the territorial integrity or political independence of any state, or in any


other manner inconsistent with the purposes of the United Nations and with the Declara-tion on Principles Guiding Relations between Participating States contained in theHelsinki Final Act.

Right to Self-DefenceThe participating states reaffirm the inherent right of individual and collective

self-defence if an armed attack occurs, recognised in the Charter of the United Nations.

Inadmissibility of Territorial Acquisition by the Threat or Use of ForceNo participating state will attempt to occupy or acquire territory by the threat or

use of force in contravention of the Charter of the United Nations. The participatingstates will not recognise such occupations or acquisitions.

Opposition to Terrorism and SubversionThe participating states reaffirm their commitment not to support terrorist acts in

any way and will take resolute measures to prevent and combat terrorism in all forms.The participating states will not sponsor or provide support on or outside their

territories for terrorists engaged, inter alia, in the subversion of legitimate governmentsof other states or in illegal activities against the citizens of other states.

Stationing of ForcesNo participating state will station its armed forces on the territory of another

participating state without that state’s explicit and free consent. Forces stationed on theterritory of another participating state will be withdrawn if such consent is withdrawnor otherwise invalidated.

This obligation does not affect in any way the prerogatives of the Security Councilas established in Chapter VII of the Charter of the United Nations.

Obligations under Arms Control and Disarmament AgreementsThe participating states will regard breaches of obligations under arms control and

disarmament agreements including regional agreements, in particular those breacheswhich may constitute a threat to security, as a source of concern for all and they willundertake appropriate measures.

They will in particular consult in such cases to help to avert or resolve disputesbetween them and to avoid use of force, each of the interested states agreeing to giveany required clarifications. They will take advantage of CSCE bodies established forsuch purposes.

BordersThe participating states reaffirm the principle of inviolability of borders as embodied

in the Helsinki Final Act, including its application to inherited borders of recentlyadmitted CSCE participating states. Participating states will not attempt, therefore, to


change borders by force or advocate such change by force. The participating states willnot recognise such changes.

The participating states equally recognise that borders may be changed, in accordancewith international law, by peaceful means and by agreement, as enshrined in the HelsinkiFinal Act. Such changes must come about after prior democratic consultations of thepopulations concerned, and must be accompanied by appropriate provisions to safeguardtheir rights. Equally, relevant decisions and resolutions of the United Nations andprovisions both of its Charter and of international law will apply.

Peaceful Evolution of StatesThe participating states will respect and encourage peaceful evolution in the constitu-

tions of all participating states in accordance with international law and the principleslaid down in this Code and the democratic wishes of the people.

PART III: INTERNATIONAL SECURITY OBLIGATIONS OF PARTICIPATINGSTATES

SECTION 1: GENERAL PRINCIPLES AND COMMITMENTS IN RESPECT OFINTERNATIONAL SECURITY OBLIGATIONS

Indivisibility of SecurityThe participating states recognise that security is indivisible and that the security

of each of them is closely linked to the security of all others.They commit themselves to respect the legitimate security interests of every other

participating state, on the basis of sovereign equality between states.Each participating state will, therefore, not pursue its own security interests at the

expense of the legitimate security interests of other participating states.

Sovereign Rights of States in the Field of SecurityBearing in mind the indivisibility of security, each of the participating states deter-

mines its security interests itself and has the right freely to choose its own securityarrangements, ensuring that they are compatible with the values and objectives of theCSCE.

The participating states recall that, as provided for in the Helsinki Final Act, eachparticipating state has the sovereign right to decide whether or not to belong to inter-national organisations, and whether to be or not to be a party to bilateral or multilateraltreaties, including treaties of alliance; they also have the right to neutrality.

SufficiencyThe participating states affirm their commitment to maintain only such military

capabilities as are necessary to prevent war, fulfil their commitments with regard to


the United Nations or the CSCE, manage crises and provide for effective defence,including in implementation of defence or alliance treaties.

They determine those capabilities on the basis of national democratic procedures,in accordance with their obligations under international law, taking into account legit-imate security concerns of other states as well as the need to contribute to the strengthen-ing of security and stability.

SECTION 2: ARMS CONTROL AND DISARMAMENT

Commitment to the Full Implementation of Existing Arms Control and Dis-armament Agreements

The participating states reaffirm that they will implement in full all their obligationsarising from existing arms control and disarmament agreements and documents. Theyregard each of these agreements and documents as an indispensable element of theirindivisible security.

All such documents will be applied against the overall objective of enhancing andpromoting dialogue, cooperation, arms control and disarmament, confidence- andsecurity-building and stability and be kept under review in the CSCE Forum for SecurityCooperation and other relevant bodies as set up in these documents.

New CSCE MeasuresThe participating states reaffirm their commitment in the Helsinki Document 1992

to pursue further arms control and disarmament measures, building upon the principlesof transparency, predictability, cooperation, verification and where appropriate limitationof armed forces and with a view to the maintenance of stability throughout the wholearea covered by the CSCE participating states, as well as an adequate balance of forcesin specific regions.

They are committed to promote the full implementation of these measures andregimes, even in crisis situations, and to foster their role in conflict prevention.

Regional agreements based on the above-mentioned principles concluded in theframework of the CSCE will be considered as contributions to the security of all.

Support for Multilateral Regimes in Respect of Non-ProliferationThe participating states reaffirm their commitment to cooperate in strengthening

and supporting non-proliferation agreements and other multilateral export control regimesaimed at preventing the proliferation of weapons of mass destruction.

The participating states will therefore take all necessary steps to become partiesto and to comply with existing multilateral non-proliferation agreements and regimes,in particular the Non-Proliferation Treaty, the Biological Weapons Convention and theChemical Weapons Convention as well as the 1925 Geneva Protocol on Non-Use ofPoisonous Gases and Bacteriological Weapons; they will, in addition, cooperate in respectof strengthening these agreements and regimes.


The participating states will exchange information about national export practiceswith a view to improving effective export controls applicable to nuclear materials andother sensitive goods and technologies related to weapons of mass destruction. Theparticipating states will also cooperate with any participating state attempting to establisha national export control system in this field.

Restraint and Transparency about Arms TransfersThe participating states also reaffirm their commitment to exercise and promote

due restraint in arms transfers and the transfer of sensitive military know-how, inparticular to states engaging in the accumulation of conventional weapons beyondlegitimate defensive needs, to regions where the security of a CSCE participating statewould be adversely affected and, more generally, to regions where a situation of tension,crisis or conflict is growing.

They will also exercise and promote transparency in arms transfers by complyingwith the United Nations Register of Conventional Arms including the establishmentof national and international provisions and procedures for meeting these requirements.

The participating states commit themselves to prevent, through appropriate legis-lation, illegal arms transfers. They will implement effective legislative controls, includingwhere appropriate licensing, for manufacture, transport and sales or export of arms.They will cooperate against illicit arms dealing and they shall exercise control throughnational or international law over the prohibited holding of all kinds of weapons,explosives, munitions and firearms by individuals or groups.

The participating states will exchange information about national export practices.They will cooperate with any participating state attempting to establish a national exportcontrol system in this field.

Commitment to Dialogue in the Area of Arms Control and DisarmamentThe participating states will also cooperate to promote international dialogue in the

field of arms control and disarmament, including negotiation of new CSCE measures,support for multilateral regimes in respect of non-proliferation and promotion of restraintand transparency about arms transfers.

SECTION 3: EARLY WARNING, CONFLICT PREVENTION AND CRISISMANAGEMENT AND THE PEACEFUL SETTLEMENT OF DISPUTES

- The participating states reaffirm their commitment to consult and cooperate insituations of potential conflict and stress the undiminished validity of CSCE commitmentsat all times, including during periods of conflict, taking into account relevant principlesof international law.

- They will make use of regular political consultations in order to cooperate andavoid the development of potential conflicts. They will thus develop a dialogue onpolitical-military issues regarding their security policies and concerns.


- They reaffirm existing undertakings in respect of conflict prevention, crisismanagement and the peaceful settlement of disputes as well as existing commitmentsto use CSCE or other relevant mechanisms in these areas.

- They will have the right to raise any concern regarding behaviour and situationswhich they consider as potentially threatening the stability or the territorial integrityof any of them.

New MeasuresThe participating states recognise that the potential sources of conflict which threaten

security and stability in the CSCE area require new efforts in the area of conflictprevention, crisis management and peaceful settlement of disputes and they will thereforecooperate fully in the appropriate CSCE fora in order to strengthen existing arrangementsin these areas as well as to develop new ones where appropriate.

SECTION 4: PEACEKEEPING AND OTHER CSCE MISSIONS

The participating states will support and cooperate fully with CSCE missions andpeacekeeping operations. In particular, they will:

- permit, support and cooperate with missions and peacekeeping operations on theirterritory mandated by the CSCE,

- use best efforts to provide assistance – material, personnel, financial – to suchmissions and operations.

The participating states will cooperate with United Nations peacekeeping operationsand other related United Nations missions. They reaffirm that the CSCE will work withthe United Nations in preventing and settling conflicts in accordance with Chapter VIIIof the Charter of the United Nations.

Humanitarian ActivitiesThe participating states will promptly consult among each other on possibilities

for concerted action in defence of human rights and the rule of law, in case of crisisand conflict.

The participating states will support humanitarian actions aimed at alleviatingsuffering among civilian populations as well as refugees and providing them with basicneeds in areas of crisis and conflict.

They will facilitate the effective implementation of humanitarian actions ensuringthe free circulation of personnel and resources dedicated to such tasks.

PART IV: DEMOCRATIC POLITICAL CONTROL OF ARMED FORCES

The participating states recognise that democratic political control of armed forcesis an essential element for the maintenance of international stability and security.


The participating states will provide for and maintain at all times effective controlof their armed forces, as well as paramilitary and security forces, by their constitutionalauthorities vested with democratic legitimacy and will ensure that those constitutionalauthorities do not fail to fulfil their responsibilities. They will ensure the constitutionalcontrol of their armed forces and will ensure that the armed forces observe the constitu-tion. They will provide for their parliaments’ budgetary approval of defence expendituresand provide for transparency of the defence budget.

The participating states affirm their commitment to the democratic political controlof, and accountability for, their armed forces. The participating states will ensure,therefore, that:

- such forces are organised by and subject to the control of constitutional authorities,- they will not allow and not support the creation on the territory under their

sovereignty of any armed forces, as well as paramilitary and security forces, that arenot accountable to their constitutional authorities,

- such forces and their members as individuals act at all times within the rule oflaw and are legally accountable for their actions, and therefore the participating statesare resolved to make all necessary legal and administrative provisions to ensure thattheir armed forces act solely within the framework of their lawful tasks,

- such forces are politically neutral in national life and, inter alia, do not serve theinterests of particular groupings or ideological systems.

If such forces usurp political control in any participating state, the participatingstates will urgently consider appropriate action within the CSCE fora.

In case of a state of public emergency, in addition to the obligations under inter-national treaties and the commitments undertaken in the framework of the CSCE, noderogation from the provisions set forth in this Code will be permitted.

A state of public emergency may be proclaimed only in accordance with provisionslaid down by law and by a constitutionally lawful body, duly empowered to do so. Thisdecision should be submitted to the Parliament in the shortest possible time.

A state of public emergency will not remain in force after the end of the eventsthat led to its declaration.

When a participating state declares a state of public emergency, it will immediatelyinform all the other participating states through the relevant CSCE institution of thisdecision as well as of the territorial limits, the aim, the expected duration and anyderogation made from the participating state’s international human rights obligations.

Each participating state will ensure that the recruitment of personnel for servicein its armed forces, as well as paramilitary and security forces, conforms with CSCEprovisions in respect of human rights and obligations as well as with humanitarianprinciples and international law. Each participating state will embody in legislation orother appropriate documents the rights and duties of members of the armed forces as


well as the right to refuse to render military service on grounds of conscientious ob-jection.

Each participating state will ensure that personnel serving with its armed forces,as well as paramilitary and security forces where these are used as part of the armedforces, are able to enjoy and exercise within the framework of the relevant constitutionaland legal provisions their human rights and fundamental freedoms, as reflected in CSCEprovisions and international law, in conformity with the conditions and requirementsof service. They will ensure appropriate procedures to protect the rights of membersof the armed forces.

A participating state has the duty, in conformity with international law, to refrainfrom training, arming, equipping, financing, supplying or otherwise encouraging, support-ing and aiding irregular forces using violence on the territory of another participatingstate.

A participating state has the duty, following relevant commitments of the CSCE,to refrain from encouraging, supporting, aiding or protecting irregular forces usingviolence on its own territory.

Participating states will be held accountable for any derogation from these duties.Neither such responsibility of the participating state nor the personal responsibility

of each member of irregular forces under international and national law for illegal actscommitted by them can be abdicated, nor their liability denied or limited by internallaw.

PART V: USE OF ARMED FORCES

Application of International Law and other International CommitmentsThe participating states reaffirm that applicable provisions of international human-

itarian law must be observed in armed conflicts and during any other actions involvingarmed forces, paramilitary and security forces, as well as irregular forces.

- The participating states will ensure, therefore, that their armed forces are staffed,manned, trained and equipped in accordance with relevant international instrumentsgoverning the conduct of war, and that personnel are aware of those instruments andtheir collective and individual rights and responsibilities under them.

- The participating states will also ensure that armed forces undertake their duties,as institutions and individuals, in conformity with international instruments, includingCSCE provisions in respect of the Human Dimension.

- The participating states will ensure that the military doctrine of their armed forcesis in conformity with the relevant principles of this Code.


Internal SecurityThe participating states recognise that there is a need to establish common standards

on the use of armed forces for internal security and related activities. The participatingstates will therefore:

- ensure that, when permanently assigning part of their armed forces to internalsecurity missions, their duties and missions will be performed under the effective controlof political and judicial authorities,

- ensure that the domestic use of armed forces, as well as paramilitary and securityforces, is subject to the rule of law, both domestic and international, and commensuratewith the needs of enforcement, and in particular that armed forces, as well as paramilitaryand security forces, use force only when strictly necessary and only to the extent requiredfor the performance of their duty and according to legal procedures,

- consider measures in the appropriate CSCE fora for the provision of informationon the use of armed forces, as well as paramilitary and security forces, for internalpurposes. Such information could include the size, organisation, role and objectives aswell as the activities of such forces, including their duration.

Human Rights and Civil RightsThe participating states will not use armed forces to limit the peaceful and lawful

exercise of their human rights by individuals or by groups, including persons belongingto minorities. Inter alia, they will not:

- use force or acts of coercion to deprive people of their national, religious, cultural,linguistic or ethnic identity,

- use armed forces to modify internal limits or boundaries or to displace populationswithout their consent and without legitimate reasons.

Neither will the participating states use armed forces to limit the peaceful exerciseof their civil rights by their people and, in particular, the right of individuals or politicalorganisations, including those representing national minorities, to advocate constitutionalchange by peaceful and legal means.

The participating states will not use or encourage violence against such individualsor organisations. Conversely the participating states will protect individuals, populations,groups or national minorities against acts of violence.

PART VI: OBSERVANCE AND MONITORING

The text of this Code will be published in each participating state, which willdisseminate it and make it known as widely as possible to the public as well as tonational legislatures.

The participating states recognise that each of them is accountable to all others forprogress on the implementation of this Code. Accordingly:


- each participating state will be entitled to obtain timely clarification from anyother participating state concerning implementation. Communications in this contextwill, if appropriate, be transmitted to all the other participating states,

- the participating states will review the implementation of this Code on a regularbasis in the CSCE Forum for Security Cooperation.

The participating states will promptly, upon the request of any participating stateand in close consultation with one another, seek to establish the facts in relation topossible breaches of this Code, including the identification of states responsible for suchbreaches, and will take appropriate action. The participating states will use existing CSCEprocedures and institutions for such purposes and, inter alia, will consider the possibilityof extending the mandates for CSCE fact-finding missions to explore apparent breaches.

Without prejudice to the above provisions or to existing provisions of internationallaw, the participating states will identify individuals responsible for breaches of human-itarian law or gross violations of human rights and will take all necessary measuresto ensure the prosecution of such individuals.

The participating states recognise the importance of ensuring that all of them fosterin their relations with non-participating states respect for the principles and provisionsof this Code and of promoting the adoption by the non-participating states of suchprinciples and provisions.

PART VII: CONCLUDING SECTION

This Code, which is politically binding, shall enter into effect on ...... is requested to transmit this Code to ... and to the Secretary-General of the United

Nations.This Code will have unlimited duration unless amended or ended by the consensus

of the participating states. The participating states will review the provisions of thisCode in the Special Committee of the CSCE Forum for Security Cooperation on ... andevery ... thereafter. In addition to the provisions of paragraphs ... above, any participatingstate may request ....


ANNEX 5

PROPOSAL SUBMITTED BY AUSTRIA AND HUNGARY ON A “CSCE CODEOF CONDUCT GOVERNING THE BEHAVIOUR OF THE PARTICIPATINGSTATES TOWARDS EACH OTHER AND OF GOVERNMENTS TOWARDS

THEIR CITIZENS”(CSCE/FSC/SC.22 of 15 September 1993)

Preamble/introductionThe participating states of the Conference on Security and Cooperation in Europe

(CSCE),Reaffirming their approach based on their comprehensive concept of security and

their conviction that security is indivisible,Reaffirming the validity of the guiding principles and common values of the HelsinkiFinal Act, the Charter of Paris and the Helsinki Document 1992, embodying respons-

ibilities of states towards each other and of governments towards their people,Recalling that all the principles, in particular those of the Helsinki Final Act, are

of primary significance and confirming accordingly that they will apply them equallyand unreservedly, each of them being interpreted taking into account the others,

Recognising that the new political and security environment in the CSCE areacharacterised by their joint commitment to pluralistic democracy, respect for humanrights and fundamental freedoms, including the rights of national minorities, the ruleof law, economic liberty, social justice and environmental responsibility requires theestablishment among themselves of new security relations based upon cooperative andcommon approaches to security,

Convinced of the need to strengthen the pluralistic and democratic nature of thenew order of relations in the CSCE area,

Recognising the need to seek new means to promote stability in the CSCE areaas a whole, within regions, and within states,

Acknowledging that this new situation demands a greater precision in, and elabora-tion of new norms for the behaviour of states towards one another, for control and useof armed forces and for the internal behaviour of Governments,

Emphasising that full implementation and strict observance of all commitmentsundertaken in the CSCE are a matter of direct and legitimate concern to all of themand that they remain accountable to each other for complying fully with them,

Stressing their determination to act in solidarity whenever CSCE norms and commit-ments are not respected,

Determined to give concerted responses to the security challenges they are facingthrough common assessment of one another’s intentions, policies and behaviour in thefield of security, and

Aiming to further strengthen, by complementing existing internationally recognisedprinciples and commitments, the set of norms and guidelines governing their internationaland domestic behaviour on all aspects of security,


Have decided upon the following CSCE Code of Conduct:

PART I: GENERAL CONCEPTS GUIDING SECURITY RELATIONS AMONGPARTICIPATING STATES

Comprehensive concept of securityThe participating states reaffirm their approach based on their comprehensive concept

of security as initiated in the Helsinki Final Act. They further believe that the need torespond adequately to the new challenges, complex in nature, and to manage changein the CSCE area highlights the increased validity of this approach.

This concept relates political and military components of security to respect forhuman rights and fundamental freedoms. It links economic and environmental solidarityand cooperation with peaceful inter-state relations.

Cooperative securityThe participating states recognise that this new era of cooperation and partnership

based on common values has made it possible and the new challenges they are con-fronted with have made it a pressing need to establish a comprehensive security frame-work reflecting their cooperative approach to security. This security framework is tobe composed of a whole variety of elements ranging from European and transatlanticorganisations and institutions to multilateral and bilateral undertakings as well as variousforms of regional and sub-regional cooperation. In this context the participating statesemphasise the need to ensure that the elements of such a comprehensive securityframework are complementary.

The participating states stress the need to ensure that the evolution of the constituentsof this framework leads to a cooperative security system of interlocking and mutuallyreinforcing institutions and arrangements.

Indivisibility of securityThe participating states recognise that security is indivisible and that the security

of each of them is inextricably linked to the security of all others.They commit themselves to respect the legitimate security interests of every other

participating state, on the basis of sovereign equality between states.In their common efforts to strengthen security and stability in the CSCE area the

participating states will ensure that the security of any of them is not adversely affected.Each participating state will not, therefore, pursue its own security interests at the

expense of the legitimate security interests of other participating states. In doing so,they will consider the implications that their actions may have on the security of others.

Sovereign rights of states in the field of securityBearing in mind the indivisibility of security, each of the participating states deter-

mines its security interests itself and has the right freely to choose its own security


arrangements, ensuring that they are compatible with the principles of the United Nationsand the values and objectives of the CSCE.

The participating states recall that, as provided for in the Helsinki Final Act, eachparticipating state has the sovereign right to decide whether or not to belong to inter-national organisations, and whether to be or not to be a party to bilateral or multilateraltreaties, including treaties of alliance; they also have the right to neutrality.

Such a decision will be respected by all the participating states.

SolidarityThe participating states, in full conformity with their conviction that security is

indivisible, will express and practice solidarity with states clearly exposed to directsecurity threats. They will, in particular, practice solidarity with a participating statesubjected to an armed aggression and seeking assistance in the realisation of its rightto self-defence.

SufficiencyThe participating states reaffirm their commitment to maintain only such military

capabilities as are commensurate with common or individual legitimate security needswithin the CSCE area and beyond.

They determine those capabilities on the basis of national democratic procedures,in accordance with their obligations under international law, taking into account legit-imate security concerns of other states, in particular those of their neighbours.

Regional and transfrontier cooperationThe participating states reiterate their conviction that the various regional cooperation

activities among participating states contribute positively to the promotion of CSCEprinciples and objectives as well as the implementation and development of CSCEcommitments. They consider all such forms of cooperation, based on sovereign equalityand mutual interests of states and being in full conformity with the objectives andprinciples of the United Nations Charter and the CSCE, as integral and importantcomponents of the evolving cooperative European security system.

The participating states will, bearing in mind the crucial role good neighbourlyrelations play in strengthening stability in the various regions and in Europe as a whole,further encourage and promote, both bilaterally and, as appropriate, multilaterally,including through initiatives in European and other international organisations, trans-frontier cooperation between territorial communities or authorities, involving borderareas of two and more participating states, with the aim of promoting friendly relationsbetween states.

They stress that such forms of cooperation should be as comprehensive as possible,promoting increased contacts at all levels, including contacts among persons sharinga common origin, cultural heritage or religious belief.


PART II. GENERAL PRINCIPLES AND COMMITMENTS GUIDING SECURITYRELATIONS AMONG PARTICIPATING STATES

SECTION I: GENERAL PRINCIPLES AND COMMITMENTS

Sovereignty and territorial integrityThe participating states reaffirm their respect for each other’s sovereign equality

and individuality as well as all the rights inherent in and encompassed by its sovereignty,including in particular the right of every state to juridical equality, to territorial integrityand to freedom and political independence in accordance with relevant internationalnorms and principles.

Self-determinationThe participating states, in accordance with the Helsinki Final Act and other CSCE

documents, reaffirm the equal rights of peoples and their right to self-determinationin conformity with the Charter of the United Nations and with the relevant norms ofinternational law. They also confirm that all peoples always have the right, in fullfreedom, to determine, when and as they wish, their internal and external political status,without external interference, and to pursue as they wish their political, economic, socialand cultural development.

Refraining from the threat or use of forceThe participating states recall their obligation to refrain from the threat or use of

force against the territorial integrity or political independence of any state, or in anyother manner inconsistent with the purposes of the United Nations and with the Declara-tion on Principles Guiding Relations between Participating States contained in theHelsinki Final Act.

The participating states, conscious that increased cooperation in all spheres of theirrelations is the best guarantee for lasting peace and stability in the CSCE area, expresstheir determination to expand and strengthen cooperation, friendly and good neighbourlyrelations among them.

Peaceful settlement of disputesEmphasising their obligation to refrain from the threat or use of force as a means

of settling disputes, the participating states confirm that disputes among them will besettled exclusively by peaceful means.

They reiterate, in this context, their conviction that full implementation of all CSCEprinciples and commitments constitutes in itself an essential element in preventingdisputes among them.

Should disputes arise among them, the participating states commit themselves tomake extensive use of the variety of existing dispute settlement mechanisms andprocedures developed both within and outside the CSCE. Bearing in mind the importantrole a comprehensive and coherent set of dispute settlement measures may play in the


CSCE area’s stability and security, they will endeavour to strengthen and develop furtherthe existing instruments and procedures including, inter alia, the mandatory involvementof an impartial third party. The participating states are open to any initiative aimingat the creation of long-term conditions for maintaining and strengthening security oftheir region, even if it is limited to a special part of the CSCE area.

Right to self-defenceThe participating states reaffirm the inherent right of individual and collective

self-defence if an armed attack occurs, as recognised in the Charter of the UnitedNations.

Inadmissibility of territorial acquisition by the threat or use of forceNo participating state will attempt to occupy or acquire territory by the threat or

use of force in contravention of the Charter of the United Nations and the CSCEprinciples. The participating states will not recognise such occupations or acquisitions.

Opposition to terrorism and subversionThe participating states reaffirm their commitment not to support terrorist acts in

any way and will take resolute measures to prevent and combat terrorism in all forms.The participating states will not sponsor or provide support on or outside their

territories for terrorists engaged, inter alia, in the subversion of legitimate governmentsof other states or in illegal activities against the citizens of other states.

BordersThe participating states reaffirm the principle of inviolability of borders as embodied

in the Helsinki Final Act, including its application to inherited borders of recentlyadmitted CSCE participating states. The participating states will not attempt, therefore,to change borders by force or advocate such change by force. The participating stateswill not recognise such changes.

The participating states equally recognise that borders may be changed, in accordancewith international law, by peaceful means and by agreement, as enshrined in the HelsinkiFinal Act. Such changes must come about after prior democratic consultations of thepopulations concerned, and must be accompanied by appropriate provisions to protectpopulations which, as a consequence of such changes, become minorities.

Peaceful evolution of statesThe participating states will respect and encourage peaceful evolution in the constitu-

tions of all participating states in accordance with international law and the Principleslaid down in this Code and the democratic wishes of the people. Within a state, politicalorganisations, including those representing national minorities, have the right, so longas they do not use or encourage recourse to violent means, to advocate whatever constitu-tional changes they consider appropriate.


Stationing of forcesNo participating state will station its armed forces on the territory of another

participating state without that state’s explicit and free consent. Forces stationed on theterritory of another participating state will be withdrawn if such consent is withdrawnor otherwise invalidated.

This obligation does not affect in any way the prerogatives of the Security Councilas established in Chapter VII of the Charter of the United Nations.

Fulfilment in good faith of obligationsThe participating states reaffirm their commitment enshrined in the Helsinki Final

Act to fulfil in good faith all the obligations and commitments they have entered into.They commit themselves, in particular, to implement all the provisions contained inthe various CSCE documents. They will ensure that their internal laws and regulationsare in conformity with their CSCE commitments.

SECTION II: COMMITMENTS WITH RESPECT TO THE DIFFERENT ASPECTSOF SECURITY

Human dimensionThe participating states, bearing in mind their comprehensive approach to security,

reconfirm that full respect for human rights and fundamental freedoms and the develop-ment of societies based on pluralistic democracy and the rule of law represent a funda-mental basis for security and stability within and among all participating states. Theyreiterate their conviction that the protection and promotion of all these rights and thestrengthening of democratic institutions is one of the basic purposes of government andtheir recognition constitutes the foundation of freedom, justice and peace.

They confirm that issues concerning human rights and fundamental freedoms, aswell as their compliance with the commitments undertaken in the field of the humandimension of the CSCE are matters of direct and legitimate concern to all of them andconsequently do not constitute exclusively an internal affair of the state concerned.

The participating states note that many of the present challenges and tensions inthe CSCE area they are facing are linked to the failure to observe CSCE principles andcommitments with respect to the human dimension. They consider violations of inter-national humanitarian law and CSCE principles and commitments such as “ethniccleansing” or mass deportation as well as various manifestations of aggressive national-ism, xenophobia, anti-Semitism, racism and other violations of human rights as pheno-mena that endanger the maintenance of peace, security and democracy which will notbe tolerated by the CSCE community.

The participating states reaffirm therefore their strong determination to ensure fullrespect for human rights and fundamental freedoms, to abide by the rule of law, topromote the principles of democracy and, in this regard, to build, strengthen and protectdemocratic institutions, as well as promote tolerance throughout society. They reconfirmtheir enduring commitment to implement fully all provisions of the Helsinki Final Act


and other CSCE documents relating to the human dimension and to ensure that theyare guaranteed for all without distinction of any kind. They recognise the compellingneed to enhance substantially the international monitoring of compliance with CSCEprinciples and commitments with regard to the human dimension. Stressing the crucialrole of the human dimension of the CSCE in longer-term conflict prevention, theyemphasise that in their efforts to prevent, manage and settle conflicts peacefully earlyidentification of root causes of tensions and of all problems related to human rightsand fundamental freedoms is of vital importance. In this regard they commit themselvesto utilise and further elaborate and refine the CSCE’s human dimension mechanismsfor early warning on potentially dangerous situations.

The participating states regard the increasing problem of refugees and displacedpersons as an issue of major concern to all of them which, potentially, may threatentheir security. In accordance with the principle of solidarity and aiming to maintain andstrengthen stability in the CSCE area, they undertake to cooperate closely, with the aimof sharing the common burden resulting from the refugee problem. They also recognisethe need to ensure that the inalienable human rights of migrant workers lawfully residingin the participating states are respected and consequently will take resolute action againstthe perpetrators of any act of violence and discrimination against them.

The participating states reiterate their conviction that the active involvement ofpersons, groups, organisations and institutions is essential to ensure that their effortsto build a lasting peaceful and democratic order and to manage the process of changewill be successful. In this context they affirm that they will strive for establishing closercooperation with non-governmental organisations which through their dual role, theirinfluence in building social conscience and their monitoring function, contribute to alarge extent to fuller implementation of human dimension commitments. They furtherrecognise that independent media are essential to a free and open society and accountablesystems of government and are of particular importance in safeguarding human rightsand fundamental freedoms.

Arms control, disarmament and confidence- and security-buildingThe participating states reaffirm that they will implement in full all their obligations

arising from existing arms control, disarmament and confidence- and security-buildingagreements and documents. They regard each of these agreements and documents asan indispensable element of indivisible security.

They also reaffirm their commitment to pursue further such negotiations with aview to the maintenance and establishment of stability throughout the whole CSCE area,as well as an adequate balance of forces in specific regions thereof.

They are committed to promote the full implementation of these measures andregimes, even in crisis situations, and to foster their role in conflict prevention.

Regional agreements based on the above-mentioned principles, concluded in theframework of the CSCE, will be welcome as contributions to the security of all.


The participating states will regard breaches of obligations under arms control anddisarmament agreements including regional agreements, in particular those breacheswhich may constitute a threat to security, as a source of concern for all.

They will in particular consult in such cases to help to avert or resolve disputesbetween them and to avoid use of force, each of the interested states agreeing to giveany required clarifications. They will take advantage of CSCE bodies established forsuch purposes.

Conscious of the potential threat the proliferation of weapons of mass destructionas well as of nuclear materials and other sensitive goods, technologies and expertiserelated to the production and possession of weapons of mass destruction poses to theirsecurity, the participating states reaffirm their commitment to cooperate in strengtheningand supporting non-proliferation agreements and other multilateral export control regimesaimed at preventing their proliferation. They will therefore take all necessary steps tobecome parties to and comply with all the existing multilateral non-proliferation agree-ments and regimes.

The participating states also reaffirm their commitment to exercise and promotedue restraint in arms transfers and the transfer of sensitive military know-how. Theyequally undertake to prevent, through appropriate legislation, illegal arms transfers.

Economic cooperationThe participating states express their conviction that increased economic cooperation

among them has a crucial role to play in strengthening security and stability in the CSCEarea. They recognise that the more their economies are intertwined and the strongertheir market economies become the more their democracies will be strengthened and,thus, the more enduringly peace and stability in the entire area will be guaranteed. Theestablishment of closer economic ties among them bringing about close interdependencereinforces the vital interests of participating states in maintaining peace and strengtheningstability, and is, therefore, the best guarantee for security and for the realisation ofindivisibility of security.

Accumulating economic difficulties and economic decline generate social tensionand unrest entailing the threat of the emergence of aggressive nationalism, intolerance,xenophobia and ethnic tensions which may lead to conflict within and between states.These instabilities, posing a special threat to the peaceful and democratic developmentof society, in particular in those participating states which are engaged in the processof transition to and development of democracy and a market economy, represent afundamental challenge to the whole CSCE community.

Conscious of the relationship between economic development and economic welfareand democracy and stability, the participating states will intensify their economiccooperation. Bearing in mind their common objective of consolidating democracy andstrengthening stability, they commit themselves to intensify their efforts to help eco-nomies in transition through increased market access within the framework of theiroverall endeavour to further promote their economic cooperation. They will take concrete


steps to facilitate the integration of the economies in transition into the internationaleconomic and financial system and to prevent the creation of new divisions.

The participating states stress the social and economic importance of the conversionof military production to civilian purposes. Conscious of the social, economic and humanproblems the carrying out of such a programme raises, they undertake to cooperate withinterested participating states.

EnvironmentConscious of the impact environmental protection and their environmental policy

have on their security and on their friendly and good-neighbourly relations andrecognising the need for preventive action, the participating states will further strengthentheir cooperation and intensify efforts aimed at protecting and improving the environ-ment, bearing in mind the need to restore and maintain a sound ecological balance inair, water and soil. Conscious that the preservation of the environment is a sharedresponsibility of all of them, they feel the pressing need for joint action in order thatpractices that may cause irreversible damage to the environment be discontinued.

They will do this by, inter alia, developing their internal legislation, includingintegration of environmental protection in other policies and in the economicdecision-making process, and their cooperation, including transfer of technologies andexpertise as well as intensification of assistance programmes necessary for efficientenvironmental protection. They will also take concrete steps to further develop efficientsystems for monitoring and evaluating compliance with existing environmental commit-ments.

The participating states stress the need to ensure effectively the safety of all nuclearinstallations. They will cooperate closely in this regard, in order to protect the populationand the environment from nuclear catastrophes. They also commit themselves to takeall steps necessary to reduce the risk of defence-related hazards.

PART III: PRINCIPLES AND COMMITMENTS RELATING TO INTERNALASPECTS OF SECURITY

SECTION I: RIGHTS OF NATIONAL MINORITIES

The participating states reaffirm that full respect for the rights of national minoritiesis an essential factor for peace, justice, stability and democracy and that problems relatedto them represent a major challenge to the entire CSCE community and thus, at a timeof promise but also a time of instability and insecurity in which various manifestationsof aggressive nationalism, xenophobia, anti-Semitism, racism and other violations ofhuman rights are present, have gained a clearly identifiable security dimension. Theyconfirm that issues concerning national minorities, as well as compliance with inter-national obligations and commitments concerning their rights, are matters of legitimateinternational concern and consequently do not constitute exclusively an internal affair


of the respective state. They realise that non-compliance with all the obligations andcommitments they have undertaken in this regard, and depriving national minoritiesof the free exercise of their rights, pose a special threat to security within and betweenstates and thus to the stability of the whole CSCE area.

Conscious of the close relationship between the development of democracy andthe way national minorities are treated and their rights are respected, the participatingstates reaffirm that questions relating to national minorities can only be satisfactorilyresolved in a democratic political framework based on the rule of law, in consultationand cooperation with freely elected representatives of national minorities. They reiteratetheir deep conviction that friendly relations among their peoples, as well as peace, justice,stability and democracy, require that the ethnic, cultural, linguistic and religious identityof national minorities be protected and conditions for the promotion of that identitybe created. Such measures, which take into account, inter alia, historical and territorialcircumstances of national minorities, are particularly important in areas where democraticinstitutions are being consolidated and national minority issues are of special concern.

They commit themselves therefore to create the necessary conditions for nationalminorities freely to express, preserve and develop their identity, to maintain their culturein all aspects, free of any attempts at assimilation against their will and to establishand maintain unimpeded contacts within and across frontiers, in particular with thosewith whom they share a common ethnic or national origin. In this regard they reaffirmthe right of national minorities to establish and maintain their own educational, culturaland religious institutions, organisations and associations. They reiterate that safeguardsfor the right of national minorities, including local or other forms of autonomy whereappropriate, must be ensured and the democratically expressed will of a national minorityto establish specific forms of autonomy must be respected. In this context they recalltheir commitment to refrain from resettling and condemn all attempts, by the threat oruse of force, to resettle persons with the aim of changing the ethnic composition of areaswithin their territories.

The participating states regard national minorities as a factor of enrichment of eachrespective state and society that links rather than separates them and contributes to theestablishment and maintenance of stable, friendly and good-neighbourly relations amongthem. With a view to improving the situation of national minorities, they reiterate thatspecial efforts must be made to resolve specific problems in a constructive mannerthrough dialogue, promoting mutual understanding and confidence, inter alia by makingextensive use of the offices of the High Commissioner on National Minorities or throughany other appropriate means. The participating states will endeavour to integrate theirefforts into a coherent system.

The participating states reaffirm their commitment to implement in a prompt andfaithful manner all their CSCE commitments regarding national minorities. They willalso fully respect their undertakings under existing human rights conventions and other


relevant international instruments regarding questions relating to national minoritiesand will adhere to the relevant conventions if they have not yet done so, including thoseproviding for a right of complaint by individuals. They will intensify unilateral, bilateraland multilateral efforts to explore further avenues for their more effective implementa-tion.

They emphasise, however, that it is not only governments who have responsibilities.National and ethnic communities should themselves recognise their interest in livingtogether peacefully and in a democratic political framework. This is the best way forthem to achieve opportunities for economic and social progress and to ensure the politicalindependence of the state they share.

SECTION II: DEMOCRATIC POLITICAL CONTROL OF ARMED FORCES

The participating states recognise that democratic political control of armed forcesis an essential element for the maintenance and promotion of stability and security inthe CSCE area as a whole, within regions and within states.

The participating states will ensure at all times effective direction and control oftheir military and paramilitary forces, internal security and intelligence services, andthe police, by their constitutional authorities vested with democratic legitimacy. Theywill equally ensure that all these armed forces and services for which they are account-able, observe the constitution. They will provide for their parliaments’ budgetary approvalof defence expenditures and provide for transparency of the defence budget.

The participating states will ensure that all such forces, organised by constitutionalauthorities, and their members as individuals, act at all times within the rule of law andare legally accountable for their actions, and therefore the participating states are resolvedto make all necessary legal and administrative provisions to ensure that their armedforces act solely within the framework of their lawful tasks. All such forces must bepolitically neutral in national life and, inter alia, must not serve the interests of particulargroupings or ideological systems. If such forces usurp political control in any participat-ing state, the participating states will consider it as a source of concern for all.

Each participating state will not allow and not support the creation on its territoryof any such armed force or service that is not accountable to its constitutional authoritiesand will refrain from supporting irregular forces in any form on its own territory orthat of another participating state.

In case of a state of public emergency, which may only be limited in time andproclaimed in accordance with provisions laid down by law, no derogation from inter-national obligations and commitments, including the provisions set forth in this Code,will be permitted. When a participating state declares a state of public emergency, it


will immediately provide detailed information to all other participating states of thisdecision.

Each participating state will ensure that the recruitment of personnel for servicein such forces conforms with international obligations and commitments in respect ofhuman rights and fundamental freedoms and that personnel serving with such forcesare able to enjoy and exercise these rights in conformity with the conditions and require-ments of service. They will embody in legislation or other appropriate documents therights and duties of members of the armed forces and also further consider the rightto refuse to render military service on grounds of conscientious objection.

Participating states will be held accountable for any derogation from these duties.Neither such responsibility of the participating state nor the personal responsibility ofeach member of their military and paramilitary forces, internal security and intelligenceservices, and the police under international and national law for illegal acts committedby them can be abdicated, nor their liability denied or limited by internal law.

SECTION III: USE OF ARMED FORCES

The participating states will not use their military and paramilitary forces, internalsecurity and intelligence services, and the police to limit the peaceful and lawful exerciseof their human rights by individuals or by groups, including national minorities. Interalia, they will not use force or acts of coercion to deprive people of their national,religious, cultural, linguistic or ethnic identity or use such forces to modify internal limitsor boundaries or to displace populations without their consent.

Neither will the participating states use such forces to limit the peaceful exerciseof their civil rights by their people and, in particular, the right of individuals or politicalorganisations, including those representing national minorities, to advocate constitutionalchange by peaceful and legal means.

The participating states will not use or encourage violence against such individualsor organisations. Conversely the participating states will protect individuals, populations,groups or national minorities against acts of violence.

The participating states reaffirm that applicable provisions of international human-itarian law must be observed in armed conflicts and during any other actions involvingany of the forces mentioned above.

The participating states will ensure that their armed forces are staffed, manned,trained and equipped in accordance with relevant international instruments governingthe conduct of war, and that personnel are aware of those instruments and their collectiveand individual rights and responsibilities under them.

The participating states will also ensure that their military and paramilitary forces,internal security and intelligence services, and the police undertake their duties, as


institutions and individuals, in conformity with international instruments, including CSCEprovisions in respect of the human dimension.

The participating states will ensure that the military doctrine of their armed forcesis in conformity with the relevant principles of this Code.

The participating states recognise that there is a need to establish common standardson the use of armed forces for internal security and related activities. They will ensurethat the domestic use of armed forces, as well as paramilitary and security forces, issubject to the rule of law, both domestic and international, and commensurate with theneeds of enforcement, and in particular that armed forces, as well as paramilitary andinternal security forces, use force only when strictly necessary and only to the extentrequired for the performance of their duty and according to legal procedures. They willconsider measures for the provision of information on their use for internal purposes.

PART IV: EARLY WARNING, CONFLICT PREVENTION AND CRISISMANAGEMENT AND THE PEACEFUL SETTLEMENT OF DISPUTES

The participating states reaffirm their commitment to consult and cooperate insituations of potential conflict and stress the undiminished validity of CSCE commitmentsat all times, including during periods of conflict taking into account relevant principlesof international law.

They will make use of regular, political consultations in order to cooperate and avoidthe development of potential conflicts. They will thus develop a dialogue on issuesregarding their security policies and concerns.

They reaffirm existing undertakings in respect of conflict prevention, crisis manage-ment and the peaceful settlement of disputes as well as existing commitments to useCSCE or other relevant mechanisms in these areas.

They will have the right to raise any concern regarding behaviour and situationswhich they consider as potentially threatening the stability or the territorial integrityof any of them.

The participating states recognise that the potential sources of conflict which threatensecurity and stability in the CSCE area require new efforts in the area of conflictprevention, crisis management and peaceful settlement of disputes and they will thereforecooperate fully in the appropriate CSCE fora in order to strengthen existing arrangementsin these areas as well as to develop new ones where appropriate.

The participating states will support and cooperate fully with CSCE missions andpeacekeeping operations. They will, in particular, permit, support and cooperate withmissions and peacekeeping operations on their territory mandated by the CSCE, as wellas use best efforts to provide assistance – material, personnel and financial – to suchmissions and operations.


The participating states will endeavour to establish close cooperation with UnitedNations peacekeeping operations and other related United Nations missions. Theyreaffirm the CSCE’s availability and readiness to work with the United Nations inpreventing and settling conflicts in accordance with Chapter VIII of the Charter of theUnited Nations.

The participating states, reiterating their vision on cooperative security, reaffirmthat close cooperation between the CSCE and European and transatlantic organisationscapable of offering appropriate resources for peacekeeping activities is of vital import-ance. With the aim of establishing such a cooperation they express their determinationto take appropriate steps urgently.

The participating states will promptly consult among each other on possibilitiesfor concerted action in defence of human rights and the rule of law, in case of conflict.

The participating states will support humanitarian actions aimed at alleviatingsuffering among civilian populations as well as refugees and providing them with basicneeds in areas of crisis and conflict.

They will facilitate the effective implementation of humanitarian actions ensuringthe free circulation of personnel and resources dedicated to such tasks.

PART V: IMPLEMENTATION MECHANISM

[Text to be developed on the basis of CSCE/FSC/SC.17, submitted on 5 May 1993]

PART VI: CONCLUDING SECTION

This Code, which is politically binding, will enter into effect on ... is requested totransmit this Code to ... and to the Secretary-General of the United Nations.

This Code will have unlimited duration unless amended or terminated by theconsensus of the participating states. The participating states will review the provisionsof this Code in the Special Committee of the CSCE Forum for Security Cooperationon ... and every ... thereafter. In addition to the provisions of paragraphs ... above, anyparticipating state may request ...


ANNEX 6

PROPOSAL SUBMITTED BY TURKEY ON A “CODE OF CONDUCTGOVERNING THE MUTUAL RELATIONS OF THE CSCE PARTICIPATING

STATES IN THE FIELD OF SECURITY”(CSCE/FSC/SC.8 of 16 December 1992)

PreambleThe participating states of the CSCE,Determined to enhance stability and security in Europe through the strengthening

of the CSCE principles,Resolved to equally and unreservedly apply all the principles and provisions of the

Helsinki Final Act, the Charter of Paris for a New Europe, the Helsinki Document 1992and of all the other CSCE documents,

Determined to protect and strengthen democracy as the only system of governmentof their nations,

Conscious of the need to give further expression to the cooperative approach tosecurity,

Committed to the indivisibility of security and undertaking not to pursue their ownsecurity interests at the expense of the security interests of other participating states,

Equally resolved to work with a view to countering and eliminating all violationsof the CSCE principles regardless of whether they originate from the conduct of states,governments, organisations, or other entities,

Guided by the comprehensive concept of security of the CSCE,Have adopted the following Code of Conduct governing their mutual relations in

the field of security:

SECTION I: GENERAL CONDITIONS FOR PROMOTING PEACE, STABILITY,SECURITY AND COOPERATION

Article 1The participating states recognise that the preservation of peace and stability should

be given the highest priority in order to provide the essential precondition for safe-guarding the inherent right of human beings to live in freedom, under democraticgovernments based on the will of the people, and the primacy of the rule of law regard-less of ethnic, religious, cultural, linguistic and racial differences.

The participating states condemn, as criminal, any attempts and acts against thesovereignty and territorial integrity of states and the threat or use of force in any mannerinconsistent with the purposes and principles of the United Nations and the CSCE.

They reaffirm the inviolability of borders and reiterate that frontiers can only changein accordance with international law, through peaceful means and by agreement.


Article 2The participating states are committed to strengthening the pluralistic and democratic

nature of the new security order in the CSCE area. They recognise that economic decline,social tension, aggressive nationalism, intolerance, racism, xenophobia and ethnicconflicts pose the greatest threat to this goal, and that gross violations in the field ofhuman rights and fundamental freedoms jeopardise the peaceful development of societies.They will therefore adopt, adjust and implement domestic and foreign policies in sucha way as to counter effectively those threats and closely cooperate with each other tothat end.

Article 3The participating states will uphold and promote democracy, human rights and the

rule of law under all circumstances and at all times. They will ensure that the free willof all the people, including those of national minorities, within their constitutional andinternationally recognised boundaries is expressed regularly through free and fairelections.

The participating states will not recognise as legitimate any Government which hascome to office through usurpation of power and as a result of the violation of theconstitution of the country.

Article 4In order to meet the challenges of this new era of cooperation, the participating

states will take effective steps to translate into life the spirit of the Charter of Paris fora New Europe. Those steps should be reflected in the daily life and behaviour withinthe participating states and relations between them. In particular, national legislation,government programmes, foreign policy documents, official press and media statementsas well as military doctrines of all states shall be consistent with CSCE principles andthe present Document.

Article 5With a view to further promoting friendship among their people, the participating

states undertake to work actively for the elimination of approaches to education whichadvocate or tolerate discrimination on racial, ethnic, religious, linguistic, cultural andhistorical grounds, or ideologies encouraging hostile feelings against peoples of differentethnic origin, particularly among the young generations.

Article 6In order to promote the application of dispute settlement, crisis management and

conflict prevention mechanisms of the CSCE and to obtain just and viable results, theparticipating states will actively cooperate with a view to helping the parties concernedto generate the will and desire to put into use available mechanisms, with their freechoice.


SECTION II: NORMS OF CONDUCT WITH DIRECT EFFECT ON MUTUALRELATIONS

Article 7The participating states reiterate their resolve to fulfil in good faith their obligations

under international law, including those arising from treaties and other internationalagreements. All such documents, including the politically binding documents agreedin the CSCE, will be applied with a view to enhancing and promoting dialogue, co-operation, disarmament and confidence- and security-building.

Article 8The participating states will fulfil all obligations or commitments arising from

disarmament, arms control and confidence- and security-building instruments concludedwithin or outside the CSCE framework. They consider the degree of compliance withobligations as a concrete yardstick in the field of military/political conduct. They willalso base their military doctrines, defence postures, force deployments and arms procure-ment programmes on objective criteria which would emphasise their increasinglydefensive character.

Article 9The participating states will also adhere, and if they have not already done so,

become parties to international arms control and disarmament treaties concluded withinthe United Nations framework. They will also cooperate closely with a view to furtheringdisarmament efforts worldwide, including the strengthening of United Nations armscontrol and disarmament fora by encouraging wider participation therein.

Article 10The participating states will, at all times, be guided by the principle of full respect

for the legitimate security needs of each other. They will especially refrain from ir-responsible and excessive armaments transfers to regions where the security of a CSCEparticipating state will be adversely affected. Armaments transfers for the sole purposeof obtaining economic benefits are hereby declared as irresponsible behaviour and,therefore, a breach of this code of conduct.

Article 11Notwithstanding the right of states to freely choose their own security arrangements,

the participating states will undertake not to conclude treaties or agreements, or enterinto security arrangements with any state, aimed at adversely affecting the security ofother participating states. This includes, inter alia, transfers of armaments, expertise,technology and financial assistance.

They will not act as brokers and intermediaries or provide transit access for suchpurposes. Individual or joint action taken in the exercise of the right of self-defenceor under a relevant CSCE or United Nations decision is outside the scope of this Article.


Article 12The participating states will fully cooperate with each other, as stipulated in the

CSCE documents, against the threat of terrorist and subversive activities. They willreview their domestic laws and regulations with a view to denying all political, financial,material and moral support to such activities.

They will also cooperate, as stipulated in the CSCE documents, against illicittrafficking of arms and drugs. Involvement in such activities is considered as a seriousbreach of this code.

Article 13In the important field of the environment, the participating states acknowledge that

non-compliance with international commitments, including those stemming from theCSCE documents, constitutes a breach of this code.

SECTION III: ACCOUNTABILITY OF STATES TOWARDS EACH OTHER BYVIRTUE OF THEIR HUMAN DIMENSION COMMITMENTS

Article 14The participating states will observe fully their responsibilities arising from the

human dimension of the CSCE, especially the provisions of the Charter of Paris,Copenhagen and Moscow Documents and the Helsinki Document 1992. They willcooperate in order to establish the conditions conducive to the development and con-solidation of pluralistic democratic institutions, including free media in their countries.

Article 15With regard to persons belonging to national minorities, the participating states will

implement in a prompt and faithful manner all their CSCE commitments, including thosecontained in the Geneva Report of Experts on National Minorities.

Article 16The participating states will fulfil their obligations regarding migrant workers and

their families also in a prompt and faithful manner and take all legal and administrativemeasures to that end.

They will take all appropriate measures to provide effective protection to foreignersagainst violence.

Article 17The participating states will take all legal and administrative measures against

organisations, groups or communities which utilise force, coercion, terrorism and otherviolent and undemocratic means aiming to change the democratic constitutional orderof any participating state and ban the activities of those groups which advocate, supportor condone such methods.


They will also prevent the activities of organisations and groups established withthe aim of bringing about changes in the social and constitutional structures on the basisof totalitarian ideologies, racism, aggressive nationalism and religious fundamentalismwhich are incompatible with democracy.

Article 18The participating states will ensure that functions, responsibilities and activities of

armed groups, militia and paramilitary forces are fully controlled by the constitutionalauthorities in accordance with relevant legislation and that neither the establishmentof such groups nor their activities against populations or other participating states willbe tolerated.

They shall exercise control in accordance with law over the possession of all kindsof weapons, explosives and firearms with the aim of denying their use by unauthorisedindividuals or groups.

Article 19The participating states will ensure that the establishment, structure and functioning

of armed forces, internal security forces and law enforcement agencies are constitutionaland legal, and that they undertake their duties, as institutions and individuals, in conform-ity with CSCE Human Dimension commitments, including the provisions of the Moscowand the Helsinki 1992 Documents.

Article 20The participating states agree on the necessity of maintaining at all times political

control and authority as well as the auditing of democratically elected legitimate civiliangovernments over all military and paramilitary forces as well as internal security,intelligence services and other law enforcement institutions. They will therefore takeall constitutional, legal and administrative measures to that end.

Article 21The participating states will refrain from using armed forces or undertaking acts

of coercion to deprive people of their national, religious, cultural, linguistic or ethnicidentity. States have a duty to refrain from acts of reprisal involving the use of forceand to protect the populations, groups or national minorities against such acts.

SECTION IV: COOPERATION WITH REGARD TO CRISIS SITUATIONS

Article 22The participating states will seek effective ways of preventing, through political

means, conflicts that may emerge among themselves or within their territories. Theyreaffirm their existing undertakings on conflict prevention, crisis management, peacefulsettlement of disputes and commitments to use CSCE mechanisms. In this connection,they emphasise the importance of maintaining a process of consultations during times


of crisis. They also commit themselves to cooperate with CSCE and international effortsto keep peace.

They will refrain from organising, inciting, supporting or participating in acts ofdomestic strife or conflict in another participating state. Regardless of their links withthe population involved in a domestic conflict, they will seek and encourage peacefulresolution of the conflicts and crises. Any attempt by third parties to influence, coerce,encourage, manipulate, intimidate or affect in similar ways the parties involved by useor threat of force is an aggravating and destabilising act, and a serious breach of thiscode. The exercise of rights arising from international treaties, as well as actions inaccordance with CSCE or United Nations resolutions, is outside the scope of thisprovision.

Article 23The participating states undertake to give further effect to the CSCE crisis manage-

ment and conflict prevention mechanisms in times of conflict. They accept, however,the supremacy of the inherent right of states to individual or collective self-defence inthe event of an armed attack, as set forth in the Charter of the United Nations. In theevent of armed attack against the territorial integrity of a participating state, all CSCEparticipating states will act in solidarity with the victim of the aggression. All CSCEand United Nations sanctions, including embargoes, will be fully respected and imple-mented.

Article 24The participating states will cooperate with each other with the aim of containing

and preventing the spread of an internal conflict in accordance with the requirementsand requests of the democratically elected legitimate government of the state concerned.

SECTION V: OTHER PROVISIONS

Article 25This Code of Conduct will be politically binding and implemented together with

the Helsinki Final Act, the Charter of Paris, the Helsinki Document 1992 and all otherdocuments of the CSCE. It does not in any way prejudice existing international normsand principles.

Article 26Japan and non-participating Mediterranean states which have a special relationship

with the CSCE will have the right to ask for the application of provisions of this Code,on the basis of reciprocity, to the relations between them and the CSCE community.Such requests will be dealt with in the Special Committee of the Forum for SecurityCooperation and agreed by consensus.


Article 27This Code, done in the six official languages of the CSCE, shall be transmitted

to the Secretary-General of the United Nations for circulation to all United Nationsmembers.

ANNEX 7

PROPOSAL SUBMITTED BY AUSTRIA, HUNGARY AND POLANDCONCERNING “IMPLEMENTATION PROVISIONS FOR A CODE OF

CONDUCT”(CSCE/FSC/SC.17 of 5 May 1993)

Ensuring full compliance of the CSCE participating states with the normative provisionsof a code of conduct governing their mutual relations in the field of security will bea prerequisite for its effectiveness and thus for the maintenance of stability and securityin the CSCE area. As is the case with other CSCE commitments, violations of itsprovisions constitute a source of concern.

The following implementation provisions bear similarity to existing CSCE proceduresand mechanisms but are adapted to the specific needs of enhanced security throughcooperative approaches. They are without prejudice to the right of participating statesto raise any subject they deem appropriate at any moment in the appropriate CSCE fora.Nor will these provisions affect the continued validity of specific existing implementationprocedures or mechanisms.

I.

1. Any participating state may address a request for clarification to another particip-ating state (other participating states) whose compliance with provisions of the codeof conduct is in doubt.

The requested state(s) will provide within 10 days written information in order toclarify the situation giving rise to the request.

The request and the reply(ies) will be transmitted to all other participating stateswithout delay.

2.1 Should the doubts about the compliance with provisions of the code of conductpersist, any participating state may ask the requested state(s) to give a full explanationat a meeting of ...1 as soon as possible, but not later than two weeks following thisrequest.

2.2 Alternatively to 2.1, any participating state, with the support of nine participatingstates, may address to the Chairman-in-Office a request for the establishment of arapporteur mission. The mission will be established by the Chairman-in-Office within

1CPC Consultative Committee or CSO Vienna Group, pending decisions bythe Rome Council meeting


10 days of the request. When establishing the mission the Chairman-in-Office will takedue account of the qualification and impartiality of the mission members. The costsof the mission will be borne by the requesting states. The requested state will fullycooperate with the mission.

A report will be submitted to the Chairman-in-Office within 10 days upon comple-tion of the mission. The report will be distributed among all participating states anddiscussed at the next meeting of the ...*.

3. A meeting held under the provisions of 2.1 or 2.2 may recommend a course ofaction to remedy a situation resulting from a violation of the provisions of the codeof conduct, if necessary, in the absence of the consent of the state(s) which shouldimplement this recommendation.

The issue will be kept under review. If the requested state(s) does (do) not complywith the recommendations, the CSO will be informed and will take at its next regularmeeting appropriate decisions, if necessary, in the absence of the consent of the state(s)concerned.

II.

In case of a serious emergency situation resulting from a violation of basic normsin the field of security the “CSCE mechanism for consultation and cooperation withregard to emergency situations” applies. The provisions under Chapter I are not construedas obligatory steps preceding the application of the aforementioned emergency mechan-ism.

However, paragraph 2.13 of this mechanism (Annex 2 of the Summary of Con-clusions of the Berlin Meeting of the CSCE Council) will be amended as follows:

In the light of the assessment of the situation the Committee of Senior Officialsmay agree on recommendations or conclusions to arrive at a solution, if necessary inthe absence of the consent of the state(s) concerned. It may also decide to convene ameeting at ministerial level, if necessary in the absence of the consent of the state(s)concerned.

If the recommendations of the CSO or the Council of Ministers are not compliedwith, it may be decided, if necessary in the absence of the consent of the state(s)concerned, to bring to the attention of the UN Security Council that a situation endanger-ing the maintenance of international peace and security has arisen and ask the SecurityCouncil to take the appropriate action.

This course of action would not inhibit further CSCE contributions to a peacefulsolution.


ANNEX 8

PROPOSAL SUBMITTED BY HUNGARY ON THE “DEMOCRATICPOLITICAL CONTROL OF THE ARMED FORCES AND OF THEIR USE”

(CSCE/FSC/SC.25 of 23 February 1994)

(1) The participating states recognise that democratic political control of the armedforces and of their use is an essential factor for the consolidation, preservation andpromotion of democracy, stability and security in the CSCE area as a whole, withinregions and within states.

I. DEMOCRATIC POLITICAL CONTROL OF THE ARMED FORCES

(2) The participating states will provide guidance for, and ensure at all timeseffective control of, their military and paramilitary forces, internal security and intel-ligence services, and the police (herein referred to as the armed forces) by their constitu-tional authorities vested with democratic legitimacy. To this end, they will:

(2.1) ensure that national laws and practices conform to international normsregarding the control of the armed forces and their activities;

(2.2) ensure that the armed forces for which they are accountable observe theconstitution and national and international law, respect human rights and act solely withintheir legal framework;

(2.3) ensure that internal regulations of the armed forces are in harmony withnational laws relating to the armed forces and the civil society, as well as with inter-national norms;

(2.4) ensure that their national law incorporates the conditions for the use of thearmed forces, specifying all circumstances in which such forces may be used, andstipulating the responsibility and obligations of persons having the right to decide ontheir use;

(2.5) ensure that their democratically elected legislative bodies exercise, in accord-ance with national law, control over the armed forces and over the governmentalauthorities to whom the armed forces are answerable. In this context, they will ensure,inter alia, that the armed forces, as well as the governmental authorities exercisingcontrol over them, are accountable to the legislative bodies;

(2.6) ensure the political neutrality of the armed forces, and that, inter alia, theydo not serve the interests of any particular group;

(2.7) seek to ensure that members of the armed forces act at all times within therule of law, and ensure their responsibility and accountability as individuals for theiractions;

(2.8) provide for transparency at both the national and international levels regardingtheir defence policy, military doctrines and budgets, and their decision-making proceduresin military matters;


(2.9) ensure that no armed force not accountable to the constitutional authoritiesis organised or operates on or from within their territories. All forces, including irregularforces, not controlled by constitutional authorities shall be disbanded. In accordancewith international law, no participating state will train, arm, equip, finance, supply orotherwise encourage, support or aid any armed forces, including irregular forces, usingor threatening to use force on the territory of another participating state;

(2.10) ensure that all cases of illegal acts involving members of the armed forcesare referred for prosecution to courts under civilian control;

(2.11) ensure that members of the armed forces are free to profess and practicetheir personal religion or belief;

(2.12) ensure that in the event of the declaration of a state of public emergency,which shall be limited in time and declared in accordance with provisions laid downby law, no derogation from international obligations and commitments is permitted.They will immediately provide detailed information to all other participating states whena state of public emergency is declared;

(2.13) ensure that all other participating states are immediately informed in theevent that the armed forces usurp political control or violate internationally recogniseddemocratic norms. They will jointly consider the ways and means by which democraticpolitical control over such forces can be restored.

(3) The responsibility for any derogation from these obligations rests with thegovernment of the participating state in question. Neither such responsibility of theparticipating states nor personal responsibility and accountability under internationaland national law for illegal acts committed by any member of the armed forces, whetheror not such forces are under the control of the participating state in question, can bedisavowed, nor may such responsibilities be denied or limited under internal statutoryprovisions.

II. RECRUITMENT AND TRAINING OF PERSONNEL OF THE ARMEDFORCES

(4) The participating states, through their legislation and practices regarding therecruitment of personnel for service in the armed forces, will ensure that:

(4.1) personnel recruitment procedures are in accordance with international obliga-tions and commitments in respect of human rights and fundamental freedoms;

(4.2) consideration is given to the right of individuals to refuse to perform militaryservice on grounds of conscientious objection.

(5) The participating states, through their legislation and practices regarding thetraining of and service by personnel of the armed forces, will ensure that:


(5.1) the internal regulations of the armed forces are in harmony with the require-ments of a defensive military doctrine and the armed forces are not trained for useagainst any particular state or for use against their own citizens;

(5.2) members of the armed forces, in particular officers and non-commissionedofficers, are familiar with the relevant international instruments governing the conductof war, as well as with the relevant provisions of CSCE documents and with theircollective and individual rights, obligations and responsibilities under such instrumentsand documents;

(5.3) personnel serving with the armed forces enjoy and are able to exercise theirrights, in particular those relating to the human dimension, taking into account theconditions and requirements of service.

III. THE USE OF THE ARMED FORCES

A. The internal use of the armed forces for the defence of the democratic order

(6) The participating states recognise that there is a need to establish commonstandards on the use of the armed forces for internal security and related tasks. In thiscontext, they will ensure that:

(6.1) the use of the armed forces within their own territory is subject to the ruleof law;

(6.2) decisions on the use of the armed forces for the defence of the democraticorder within the state are taken only by civilian authorities and in accordance withnational law;

(6.3) the armed forces are used only when strictly necessary and only to the extentrequired for the restoration of the lawful democratic order and according to legalprocedures, avoiding as far as possible any harmful effect on civilians or on theirproperty. For the restoration of democratic order within a state only armed forcesspecially trained for this purpose will be used. The armed forces will not be used forreprisals;

(6.4) those who, empowered by the constitution or the basic national law, takespecific decisions on the internal use of the armed forces are held accountable. Com-manders and members of the armed forces carrying out such operations will be in-dividually responsible and accountable for their actions;

(6.5) the armed forces are not used to restrict the peaceful and lawful exerciseof human rights by individuals or groups, including national minorities. Participatingstates will not, inter alia, use force or coercion to deprive persons of their national,religious, cultural, linguistic or ethnic identity, to change internal boundaries or todisplace populations without their consent;

(6.6) the armed forces are not used to restrict either the peaceful exercise by thepopulation of their civil rights or the right of individuals or political organisations,


including those representing national minorities, to advocate constitutional changes bypeaceful and lawful means;

(6.7) applicable provisions of international humanitarian law are observed in armedconflicts and during any other actions involving the armed forces.

(7) If the civil authorities of any participating state are not able to restore thedemocratic order, that state will, as its primary resort, use police and internal securityforces for that purpose. Participating states are encouraged to provide information toall other participating states in such cases.

(8) Military force will be used within a state only for the protection of the civilianpopulation and the restoration of the legal democratic order, following a decision ofthe constitutional authorities empowered to take such a decision, and as a last resortshould the police and the internal security forces prove to be inadequate for those tasks.Participating states will, without delay, provide detailed information to all other particip-ating states on the use of such forces, specifying their size, organisation, role, objectivesand activities.

B. Use of military forces against outside aggression

(9) The participating states:(9.1) will adopt no military doctrine that is not defensive in nature or not in

conformity with the purposes and principles of the United Nations and the principlesand commitments of the CSCE;

(9.2) will use their military forces to oppose an outside aggression only followinga decision of their constitutional authorities;

(9.3) will ensure that their military forces are staffed, manned, trained and equippedin accordance with the international instruments governing the conduct of war;

(9.4) will ensure that, in the event of war or any other armed conflict, their militaryforces comply strictly with all the provisions of the relevant international instrumentsgoverning the conduct of war and with international humanitarian law and, in particular,refrain from committing acts of cruelty or barbarity and from damaging or destroyingnon-military property.

C. International use of military and police forces for peacekeeping tasks underthe aegis of the United Nations or the CSCE

[To be completed]


ANNEX 9

WORKING DOCUMENT SUBMITTED BY FRANCE REGARDING THESTRUCTURE OF A CODE OF CONDUCT (CSCE/FSC/SC/B.2 of 3 June 1993)

The purpose of this document is to recall the structure of the proposal made in documentSC.7 of 16 December 1992 [tabled by the European Community and other participatingstates] and to identify possible areas of convergence between delegations as regardsthe structure of the Code of Conduct.

I. PREAMBLE

This should: (1) spell out the context (new security environment in Europe); (2)state the overall objectives of the Code (to promote stability within the CSCE area);and (3) reaffirm fundamental principles such as confirmation of the existing norms andrespect for human rights and the rights of minorities.

II. GENERAL PRINCIPLES OF THE CODE

Following the Preamble, this initial part should:1. recall the most directly relevant principles,2. emphasising their applicability erga omnes, and3. spell out the content of these principles, some of which derive from the Charter ofthe United Nations and/or the Helsinki Final Act.

In the opinion of the 15 countries co-sponsoring the proposal made in documentSC.7, this body of principles should focus on:1. the non-use of force;2. borders;3. security obligations.

III. COMMITMENTS

The commitments derive from the general principles recalled in the Code andcorrespond to the “responsible and cooperative norms of behaviour on politico-militaryaspects of security” (Helsinki Document 1992, section 12 of the Programme for Imme-diate Action).

In the opinion of the 15 co-sponsoring countries, the Code should contain under-takings in three areas:

1. arms control and disarmament (for example, full implementation of the existingagreements and treaties, and procedures for transparency about arms transfers);


2. conflict prevention and crisis resolution (for example, the commitment to consultand cooperate in situations of potential crisis and to use the existing CSCE mechanisms);

3. peacekeeping (the field of application of the commitments would be twofold:within the CSCE framework and within the context of cooperation with United Nationsmissions).

IV. DEMOCRATIC POLITICAL CONTROL OF ARMED FORCES

The purpose of this section is to guarantee the principle of the control of armed forcesby the political authorities.

This section contains:1. general principles (for example, the democratic nature of the control of armed

forces by the political authorities and the neutrality of armed forces);2. commitments (for example, the subordination of armed forces to the constitu-

tional authorities; the legal accountability of armed forces for their actions; the layingdown of rights and obligations with regard to military service).

V. USE OF ARMED FORCES

The purpose of this section is to affirm the necessary conformity in the use ofarmed forces with the principles and commitments enshrined in the Code.

These provisions relate, inter alia, to:1. the operational organisation of armed forces (compatibility with the Code of

the doctrines governing their use);2. the conformity of the use of force with international humanitarian law;3. the need to specify principles and commitments regarding the use of armed

forces, including their use internally within states.

VI. OBSERVATION AND MONITORING

The purpose of this section is twofold:1. to specify the procedures for publicising the Code and spell out the responsibility

of states and individuals in the event of non-observance of the principles and commit-ments set forth in the Code;

2. to ensure that the observance and application of the Code are monitored andverified.


VII. CONCLUDING SECTION

The politically binding nature of the Code will be affirmed here.

ANNEX 10

UNITED NATIONS “CODE OF CONDUCT FOR LAW ENFORCEMENTOFFICIALS” ADOPTED BY THE UNITED NATIONS GENERAL ASSEMBLY

(Resolution 34/169 of 17 December 1979)

The General Assembly,

Considering that the purposes proclaimed in the Charter of the United Nationsinclude the achievement of international cooperation in promoting and encouragingrespect for human rights and for fundamental freedoms for all without distinction asto race, sex, language or religion,

Recalling, in particular, the Universal Declaration of Human Rights and theInternational Covenants on Human Rights,

Recalling also the Declaration on the Protection of All Persons from Being Sub-jected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,adopted by the General Assembly in its resolution 3452 (XXX) of 9 December 1975,

Mindful that the nature of the functions of law enforcement in the defence of publicorder and the manner in which those functions are exercised have a direct impact onthe quality of life of individuals as well as of society as a whole,

Conscious of the important task which law enforcement officials are performingdiligently and with dignity, in compliance with the principles of human rights,

Aware, nevertheless, of the potential for abuse which the exercise of such dutiesentails,

Recognising that the establishment of a code of conduct for law enforcementofficials is only one of several important measures for providing the citizenry servedby law enforcement officials with protection of all their rights and interests,

Aware that there are additional important principles and prerequisites for thehumane performance of law enforcement functions, namely:

(a) That, like all agencies of the criminal justice system, every law enforcementagency should be representative of and responsive and accountable to the communityas a whole,

(b) That the effective maintenance of ethical standards among law enforcementofficials depends on the existence of a well-conceived, popularly accepted and humanesystem of laws,

(c) That every law enforcement official is part of the criminal justice system, theaim of which is to prevent and control crime, and that the conduct of every functionarywithin the system has an impact on the entire system,


(d) That every law enforcement agency, in fulfilment of the first premise of everyprofession, should be held to the duty of disciplining itself in complete conformity withthe principles and standards herein provided and that the actions of law enforcementofficials should be responsive to public scrutiny, whether exercised by a review board,a ministry, a procuracy, the judiciary, an ombudsman, a citizens’ committee or anycombination thereof, or any other reviewing agency,

(e) That standards as such lack practical value unless their content and meaning,through education and training and through monitoring, become part of the creed ofevery law enforcement official,

Adopts the Code of Conduct for Law Enforcement Officials set forth in the annexto the present resolution and decides to transmit it to Governments with the recommenda-tion that favourable consideration should be given to its use within the framework ofnational legislation or practice as a body of principles for observance by law enforcementofficials.

ANNEX. Code of Conduct for Law Enforcement Officials

Article 1Law enforcement officials shall at all times fulfil the duty imposed upon them

by law, by serving the community and by protecting all persons against illegal acts,consistent with the high degree of responsibility required by their profession.

Commentary:272

(a) The term “law enforcement officials” includes all officers of the law, whetherappointed or elected, who exercise police powers, especially the powers of arrest ordetention.

(b) In countries where police powers are exercised by military authorities, whetheruniformed or not, or by state security forces, the definition of law enforcement officialsshall be regarded as including officers of such services.

(c) Service to the community is intended to include particularly the rendition ofservices of assistance to those members of the community who by reason of personal,economic, social or other emergencies are in need of immediate aid.

(d) This provision is intended to cover not only all violent, predatory and harmfulacts, but extends to the full range of prohibition under penal statutes. It extends toconduct by persons not capable of incurring criminal liability.

272 The commentaries provide information to facilitate the use of the Code withinthe framework of national legislation or practice. In addition, national or regionalcommentaries could identify specific features of the legal systems and practicesof different states or regional intergovernmental organisations which would promotethe application of the Code.


Article 2In the performance of their duty, law enforcement officials shall respect and protect

human dignity and maintain and uphold the human rights of all persons.

Commentary:(a) The human rights in question are identified and protected by national and

international law. Among the relevant international instruments are the UniversalDeclaration of Human Rights, the International Covenant on Civil and Political Rights,the Declaration on the Protection of All Persons from Being Subjected to Torture andOther Cruel, Inhuman or Degrading Treatment or Punishment, the United NationsDeclaration on the Elimination of All Forms of Racial Discrimination, the InternationalConvention on the Elimination of All Forms of Racial Discrimination, the InternationalConvention on the Suppression and Punishment of the Crime of Apartheid, the Conven-tion on the Prevention and Punishment of the Crime of Genocide, the Standard MinimumRules for the Treatment of Prisoners and the Vienna Convention on Consular Relations.

(b) National commentaries to this provision should indicate regional or nationalprovisions identifying and protecting these rights.

Article 3Law enforcement officials may use force only when strictly necessary and to the

extent required for the performance of their duty.

Commentary:(a) This provision emphasises that the use of force by law enforcement officials

should be exceptional; while it implies that law enforcement officials may be authorisedto use force as is reasonably necessary under the circumstances for the prevention ofcrime or in effecting or assisting in the lawful arrest of offenders or suspected offenders,no force going beyond that may be used.

(b) National law ordinarily restricts the use of force by law enforcement officialsin accordance with a principle of proportionality. It is to be understood that such nationalprinciples of proportionality are to be respected in the interpretation of this provision.In no case should this provision be interpreted to authorise the use of force which isdisproportionate to the legitimate objective to be achieved.

(c) The use of firearms is considered an extreme measure. Every effort shouldbe made to exclude the use of firearms, especially against children. In general, firearmsshould not be used except when a suspected offender offers armed resistance or otherwisejeopardises the lives of others and less extreme measures are not sufficient to restrainor apprehend the suspected offender. In every instance in which a firearm is discharged,a report should be made promptly to the competent authorities.


Article 4Matters of a confidential nature in the possession of law enforcement officials

shall be kept confidential, unless the performance of duty or the needs of justice strictlyrequire otherwise.

Commentary:By the nature of their duties, law enforcement officials obtain information which

may relate to private lives or be potentially harmful to the interests, and especially thereputation, of others. Great care should be exercised in safeguarding and using suchinformation, which should be disclosed only in the performance of duty or to serve theneeds of justice. Any disclosure of such information for other purposes is whollyimproper.

Article 5No law enforcement official may inflict, instigate or tolerate any act of torture

or other cruel, inhuman or degrading treatment or punishment, nor may any law enforce-ment official invoke superior orders or exceptional circumstances such as state of waror a threat of war, a threat to national security, internal political instability or any otherpublic emergency as a justification of torture or other cruel, inhuman or degradingtreatment or punishment.

Commentary:(a) This prohibition derives from the Declaration on the Protection of All Persons

from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatmentor Punishment, adopted by the General Assembly, according to which: “[Such an actis] an offence to human dignity and shall be condemned as a denial of the purposesof the Charter of the United Nations and as a violation of the human rights and funda-mental freedoms proclaimed in the Universal Declaration of Human Rights [and otherinternational human rights instruments]”.

(b) The Declaration defines torture as follows: “ … torture means any act by whichsevere pain or suffering, whether physical or mental, is intentionally inflicted by or atthe instigation of a public official on a person for such purposes as obtaining from himor a third person information or confession, punishing him for an act he has committedor is suspected of having committed, or intimidating him or other persons. It does notinclude pain or suffering arising only from, inherent in or incidental to, lawful sanctionsto the extent consistent with the Standard Minimum Rules for the Treatment ofPrisoners”.

(c) The term “cruel, inhuman or degrading treatment or punishment” has not beendefined by the General assembly but should be interpreted so as to extend the widestpossible protection against abuses, whether physical or mental.


Article 6Law enforcement officials shall ensure the full protection of the health of persons

in their custody and, in particular, shall take immediate action to secure medical attentionwhenever required.

Commentary:(a) “Medical attention”, which refers to services rendered by any medical personnel,

including certified medical practitioners and paramedics, shall be secured when neededor requested.

(b) While the medical personnel are likely to be attached to the law enforcementoperation, law enforcement officials must take into account the judgement of suchpersonnel when they recommend providing the person in custody with appropriatetreatment through, or in consultation with, medical personnel from outside the lawenforcement operation.

(c) It is understood that law enforcement officials also secure medical attentionfor victims of violations of law or of accidents occurring in the course of violationsof law.

Article 7Law enforcement officials shall not commit any act of corruption. They shell also

rigorously oppose and combat all such acts.

Commentary:(a) Any act of corruption, in the same way as any other abuse of authority, is

incompatible with the profession of law enforcement officials. The law must be enforcedfully with respect to any law enforcement official who commits an act of corruption,as Governments cannot expect to enforce the law among their citizens if they cannot,or will not, enforce the law against their own agents and within their own agencies.

(b) While the definition of corruption must be subject to national law, it shouldbe understood to encompass the commission or omission of an act in the performanceof or in connection with one’s duties, in response to gifts, promises or incentivesdemanded or accepted or the wrongful receipt of these once the act has been committedor omitted.

(c) The expression “act of corruption” referred to above should be understoodto encompass attempted corruption.

Article 8Law enforcement officials shall respect the law and the present Code. They shall

also, to the best of their capability, prevent and rigorously oppose any violation of them.Law enforcement officials who have reason to believe that a violation of the present

Code has occurred or is about to occur shall report the matter to their superior authoritiesand, where necessary, to other appropriate authorities or organs vested with reviewingor remedial power.


Commentary:(a) This Code shall be observed whenever it has been incorporated into national

legislation or practice. If legislation or practice contains stricter provisions than thoseof the present Code, those stricter provisions shall be observed.

(b) The article seeks to preserve the balance between the need for internal disciplineof the agency on which public safely is largely dependent, on the one hand, and theneed for dealing with violations of basic human rights, on the other. Law enforcementofficials shall report violations within the chain of command and take other lawful actionoutside the chain of command only when no other remedies are available or effective.It is understood that law enforcement officials shall not suffer administrative or otherpenalties because they have reported that a violation of this Code has occurred or isabout to occur.

(c) The term “appropriate authorities or organs vested with reviewing or remedialpower” refers to any authority or organ existing under national law, whether internalto the law enforcement agency or independent thereof, with statutory, customary or otherpower to review grievances and complaints arising out of violations within the purviewof this Code.

(d) In some countries, the mass media may be regarded as performing complaintreview functions similar to those described in subparagraph (c) above. Law enforcementofficials may, therefore, be justified if, as a last resort and in accordance with the lawsand customs of their own countries and with the provisions of article 4 of the presentCode, they bring violations to the attention of public opinion through the mass media.

(e) Law enforcement officials who comply with the provisions of this Code deservethe respect, the full support and the cooperation of the community and of the lawenforcement agency in which they serve, as well as the law enforcement profession.

ANNEX 11

“DECLARATION ON THE POLICE” ADOPTED BY THE PARLIAMENTARYASSEMBLY OF THE COUNCIL OF EUROPE (Resolution 690 of 8 May 1979)

The Assembly,1. Considering that the full exercise of human rights and fundamental freedoms,

guaranteed by the European Convention on Human Rights and other national andinternational instruments, has as a necessary basis the existence of a peaceful societywhich enjoys the advantages of order and public safety;

2. Considering that, in this respect, police play a vital role in all the member states,that they are frequently called upon to intervene in conditions which are dangerous fortheir members, and that their duties are made yet more difficult if the rules of conductof their members are not sufficiently precisely defined;

3. Being of the opinion that it is inappropriate for those who have committedviolations of human rights whilst members of police forces, or those who have belonged


to any police force that has been disbanded on account of inhumane practices, to beemployed as policemen;

4. Being of the opinion that the European system for the protection of human rightswould be improved if there were generally accepted rules concerning the professionalethics of the police which take account of the principles of human rights and fundamentalfreedoms;

5. Considering that it is desirable that police officers have the active moral andphysical support of the community they are serving;

6. Considering that police officers should enjoy status and rights comparable tothose of members of the civil service;

7. Believing that it may be desirable to lay down guidelines for the behaviour ofpolice officers in case of war and other emergency situations, and in the event ofoccupation by a foreign power,

8. Adopts the following Declaration on the Police, which forms an integral partof this resolution;

9. Instructs its Committee on Parliamentary and Public Relations and its LegalAffairs Committee as well as the Secretary-General of the Council of Europe to givemaximum publicity to the declaration.

APPENDIX. Declaration on the Police

A. Ethics273

1. A police officer shall fulfil the duties the law imposes upon him by protectinghis fellow citizens and the community against violent, predatory and other harmful acts,as defined by law.

2. A police officer shall act with integrity, impartiality and dignity. In particularhe shall refrain from and vigorously oppose all acts of corruption.

3. Summary executions, torture and other forms of inhuman or degrading treatmentor punishment remain prohibited in all circumstances. A police officer is under anobligation to disobey or disregard any order or instruction involving such measures.

4. A police officer shall carry out orders properly issued by his hierarchicalsuperior, but he shall refrain from carrying out any order he knows, or ought to know,is unlawful.

5. A police officer must oppose violations of the law. If immediate or irreparableand serious harm should result from permitting the violation to take place he shall takeimmediate action, to the best of his ability.

273 Parts A and B of the declaration cover all individuals and organisations, includingsuch bodies as secret services, military police forces, armed forces or militiasperforming police duties, that are responsible for enforcing the law, investigatingoffences, and maintaining public order and state security.


6 . If no immediate or irreparable and serious harm is threatened, he mustendeavour to avert the consequences of this violation, or its repetition, by reporting thematter to his superiors. If no results are obtained in that way he may report to higherauthority.

7. No criminal or disciplinary action shall be taken against a police officer whohas refused to carry out an unlawful order.

8. A police officer shall not cooperate in the tracing, arresting, guarding or convey-ing of persons who, while not being suspected of having committed an illegal act, aresearched for, detained or prosecuted because of their race, religion or political belief.

9. A police officer shall be personally liable for his own acts and for acts ofcommission or omission he has ordered and which are unlawful.

10. There shall be a clear chain of command. It should always be possible todetermine which superior may be ultimately responsible for acts or omissions of a policeofficer.

11. Legislation must provide for a system of legal guarantees and remedies againstany damage resulting from police activities.

12. In performing his duties, a police officer shall use all necessary determinationto achieve an aim which is legally required or allowed, but he may never use more forcethan is reasonable.

13. Police officers shall receive clear and precise instructions as to the mannerand circumstances in which they should make use of arms.

14. A police officer having the custody of a person needing medical attention shallsecure such attention by medical personnel and, if necessary, take measures for thepreservation of the life and health of this person. He shall follow the instructions ofdoctors and other competent medical workers when they place a detainee under medicalcare.

15. A police officer shall keep secret all matters of a confidential nature comingto his attention, unless the performance of duty or legal provisions require otherwise.

16. A police officer who complies with the provisions of this declaration is entitledto the active moral and physical support of the community he is serving.

B. Status

1. Police forces are public services created by law, which shall have the responsibil-ity of maintaining and enforcing the law.

2. Any citizen may join the police forces if he satisfies the relevant conditions.3. A police officer shall receive thorough general training, professional training

and in-service training,as well as appropriate instruction in social problems, democratic freedoms, human rightsand in particular the European Convention on Human Rights.

4. The professional, psychological and material conditions under which a policeofficer must perform his duties shall be such as to protect his integrity, impartiality anddignity.


5. A police officer is entitled to a fair remuneration, and special factors are tobe taken into account, such as greater risks and responsibilities and more irregularworking schedules.

6. Police officers shall have the choice of whether to set up professionalorganisations, join them and play an active part therein. They may also play an activepart in other organisations.

7. A police professional organisation, provided it is representative shall have theright:

- to take part in negotiations concerning the professional status of police officers;- to be consulted on the administration of police units;- to initiate legal proceedings for the benefit of a group of police officers or on

behalf of a particular police officer.8. Membership of a police professional organisation and playing an active part

therein shall not be detrimental to any police officer.9. In case of disciplinary or penal proceedings taken against him, a police officer

has the right to be heard and to be defended by a lawyer. The decision shall be takenwithin a reasonable time. He shall also be able to avail himself of the assistance of aprofessional organisation to which he belongs.

10. A police officer against whom a disciplinary measure has been taken or penalsanction imposed shall have the right of appeal to an independent and impartial bodyor court.

11. The rights of a police officer before courts or tribunals shall be the same asthose of any other citizen.

C. War and other emergency situations – occupation by a foreign power274

1. A police officer shall continue to perform his tasks of protecting persons andproperty during war and enemy occupation in the interests of the civilian population.For that reason he shall not have the status of “combatant”, and the provisions of theThird Geneva Convention of 12 August 1949, relative to the treatment of prisoners ofwar, shall not apply.

2. The provisions of the Fourth Geneva Convention of 12 August 1949, relativeto the protection of civilian persons in time of war, apply to the civilian police.

3. The occupying power shall not order police officers to perform tasks other thanthose mentioned in Article 1 of this chapter.

4. During occupation a police officer shall not:- take part in measures against members of resistance movements;- take part in applying measures designed to employ the population for military

purposes and for guarding military installations.

274 This chapter does not apply to the military police.


5. If a police officer resigns during enemy occupation because he is forced toexecute illegitimate orders of the occupying power which are contrary to the interestsof the civilian population, such as those listed above, and because he sees no other wayout, he shall be reintegrated into the police force as soon as the occupation is overwithout losing any of the rights or benefits he would have enjoyed if he had stayedin the police force.

6. Neither during nor after the occupation may any penal or disciplinary sanctionbe imposed on a police officer for having executed in good faith an order of an authorityregarded as competent, where the execution of such an order was normally the dutyof the police force.

7. The occupying power shall not take any disciplinary or judicial action againstpolice officers by reason of the execution, prior to the occupation, of orders given bythe competent authorities.

ANNEX 12

RECOMMENDATION 1402 (1999) ON “CONTROL OF INTERNAL SERVICESIN COUNCIL OF EUROPE MEMBER STATES” ADOPTED BY THE

PARLIAMENTARY ASSEMBLY OF THE COUNCIL OF EUROPEon 26 April 1999

1. The Assembly recognises that internal security services perform a valuableservice to democratic societies in protecting national security and the free order of thedemocratic state.

2. However, the Assembly is concerned that member countries’ internal securityservices often put the interests of what they perceive as those of national security andtheir country above respect for the rights of the individual. Since, in addition, internalsecurity services are often inadequately controlled, there is a high risk of abuse of powerand violations of human rights, unless legislative and constitutional safeguards areprovided.

3. The Assembly finds this situation potentially dangerous. While internal securityservices should be empowered to fulfil their legitimate objective of protecting nationalsecurity and the free order of a democratic state against clear and present dangers, theyshould not be given a free hand to violate fundamental rights and freedoms.

4. Instead, a careful balance should be struck between the right of a democraticsociety to national security and individual human rights. Some human rights (such asthe right to be protected from torture or inhuman treatment) are absolute, and shouldnever be interfered with by state authorities, including internal security services. In othercases, however, which right should have priority – the individual human right or theright of a democratic society to national security – will have to be established usingthe principles of proportionality and legality, as laid down in the European Conventionon Human Rights.


5. The risk of abuse of powers by internal security services, and thus the risk ofserious human rights violations, rises when internal security services are organised ina specific fashion, when they wield certain powers such as preventive and enforcementmethods which involve forcible means (for example the power to search private property,run criminal investigations, arrest and detain), when they are inadequately controlled(by the executive, legislative and the judiciary), and also when there are too many ofthem.

6. The Assembly thus proposes that internal security services should not be allowedto run criminal investigations, arrest or detain people, nor should they be involved inthe fight against organised crime, except in very specific cases, when organised crimeposes a clear danger to the free order of a democratic state. Any interference of opera-tional activities of internal security services with the exercise of human rights andfundamental freedoms as protected in the European Convention on Human Rights shouldbe authorised by law, and preferably by a judge, before the activity is carried out.Effective democratic control of the internal security services, both a priori and ex postfacto, by all three branches of power, is especially vital in this regard.

7. The Assembly considers it necessary that each individual country provideefficiently for its own internal security requirements while ensuring proper avenues ofcontrol in conformity with a uniform democratic standard. This common standard shouldensure that internal security services act only in the national interest, fully respectingfundamental freedoms, and cannot be used as a means of oppression or undue pressure.

8. Thus, the Assembly recommends that the Committee of Ministers draw up aframework convention on internal security services incorporating the guidelines belowwhich form an integral part of this recommendation.

GuidelinesA. As regards the organisation of internal security services

i. All internal security services must be organised and must operate on a statutorybasis, that is on the basis of national laws which have gone through the normal law-making process in parliament, and which are completely public.

ii. The sole task of the internal security services must be to protect nationalsecurity. Protecting national security is defined as combating clear and present dangersto the democratic order of the state and its society. Economic objectives, or the fightagainst organised crime per se, should not be extended to the internal security services.They should only deal with economic objectives or organised crime when they presenta clear and present danger to national security.

iii. The executive must not be allowed to extend objectives to the internal securityservices. These objectives should instead be laid down by law, to be interpreted by thejudiciary in case of conflicting interpretations (and not by successive governments).Internal security services should not be used as a political tool to oppress political parties,national minorities, religious groups or other particular groups of the population.


iv. Internal security services should preferably not be organised within a militarystructure. Nor should civilian security services be organised in a military or semi-militaryway.

v. Member states should not resort to non-governmental financing sources tosupport their internal security services, but finance them exclusively from the statebudget. The budgets submitted to parliament for approval should be detailed and explicit.

B. As regards the operational activities of internal security servicesi. Internal security services must respect the European Convention on Human

Rights.ii. Any interference by operational activities of internal security services with the

European Convention on Human Rights must be authorised by law. Telephone tapping,mechanical or technical, aural and visual surveillance, and other operational measurescarrying a high risk of interference with the rights of the individual should be subjectto special a priori authorisations by the judiciary. Legislation should normally establishparameters which are to be taken into consideration by judges or magistrates, who shouldbe available for prior authorisations 24 hours a day so that the demand for authorisationcan be processed within a few hours (maximum), before they authorise operationalactivities such as house searches. These parameters should include as minimum require-ments for authorisation that:

a. there is probable cause for belief that an individual is committing, has committed,or is about to commit an offence;

b. there is probable cause for belief that particular communications or specificproof concerning that offence will be obtained through the proposed interception orhouse searches, or that (in the case of arrest) a crime can thus be prevented;

c. normal investigative procedures have been attempted but have failed or appearunlikely to succeed or be too dangerous.

The authorisation to undertake this kind of operative activity should be time-limited(to a maximum of three months). Once observation or wire-tapping has ended, the personconcerned should be informed of the measure taken.

iii. Internal security services should not be authorised to carry out law-enforcementtasks such as criminal investigations, arrests, or detention. Due to the high risk of abuseof these powers, and to avoid duplication of traditional police activities, such powersshould be exclusive to other law-enforcement agencies.

C. As regards effective democratic control of the internal security servicesi. The executive should exercise ex post facto control of the activities of the internal

security services, for example by obliging the internal security services to draw up andsubmit annual detailed reports on their activities. One minister should be assigned thepolitical responsibility for controlling and supervising internal security services, andhis office should have full access in order to make possible effective day-to-day control.The minister should address an annual report to parliament on the activities of internalsecurity services.


ii. The legislature should pass clear and adequate laws putting the internal securityservices on a statutory basis, regulating which kind of operational activities carryinga high risk of violation of individual rights may be used in which circumstances, andproviding for adequate safeguards against abuse. It should also strictly control theservices’ budget, inter alia by obliging these services to submit to it annual detailedreports on how their budget is used, and should set up special select control committees.

iii. The judiciary should be authorised to exercise extensive a priori and ex postfacto control, including prior authorisation to carry out certain activities with a highpotential to infringe upon human rights. The overriding principle for ex post facto controlshould be that persons who feel that their rights have been violated by acts (or omissions)of security organs should in general be able to seek redress before courts of law or otherjudicial bodies. These courts should have jurisdiction to determine whether the actionscomplained of were within the powers and functions of the internal security servicesas established by law. Thus, the court should have the right to determine whether therewas undue harassment of the individual or abuse of discretionary administrative powersin his or her regard.

iv. Other bodies (for example ombudsmen and data protection commissioners)should be allowed to exercise ex post facto control of the security services on a case-by-case basis.

v. Individuals should be given a general right of access to information gatheredand stored by the internal security service(s), with exceptions to this right in the interestof national security clearly defined by law. It would also be desirable that all disputesconcerning an internal security service’s power to bar disclosure of information besubject to judicial review.

1. Assembly debate on 26 April 1999 (9th Sitting) (see Doc. 8301, report of the Commit-tee on Legal Affairs and Human Rights, rapporteur: Mr Frunda). Text adopted by theAssembly on 26 April 1999 (9th Sitting).

P A R T II

ASSESSMENT OF IMPLEMENTATION TRENDS

OF THE CODE OF CONDUCT

“With the current domestic legislation, ordinances, decrees, traininginstructions … (etc.), the prerequisites of the OSCE Code of Conductare generally considered to be complied with. However, since the mereexistence of standards of domestic or international law does not fullysatisfy the requirements of the Code of Conduct, it is necessary toensure a permanent review of the Code of Conduct both as regardsthe ongoing training and service operations and the need tocommunicate the relevant contents in the course of training pro-grammes for soldiers of all ranks.”1

1 Statement made by Austria on the implementation of the Code of Conduct.

INTRODUCTORY REMARKS

The purpose of the present study is to provide an analysis and assessmentof information exchanged on the OSCE Code of Conduct on Politico-MilitaryAspects of Security for the period 1999-2002. Over 200 national reports havethus been carefully evaluated with special focus on the OSCE regime for thedemocratic control of armed forces. In addition, the final chapter “The 2003and 2004 Information Exchange” also summarises the main new elements ofthe last two reporting periods.

The study does not mention specific participating states. It is so to speakanonymous for three main reasons. The first reason has to do with the fact thatthe national reports are of restricted access. Although the proposal to providethe information exchange through the Internet has been discussed several timesat the follow-up conferences on the Code, no formal decision has yet be takenby the Forum for Security Cooperation to render the information exchangepublicly accessible. The second reason relates to the quality of informationexchanged. Most of the information lacks clear target-orientation and precision.Furthermore, the participating states do not have a common understanding ofkey concepts and terminology, which would be a prerequisite for a consistentway of reporting. Finally, the Questionnaire is worded in a rather general wayand does not itself provide appropriate guidelines to the participating states fortheir reporting. Subsequently, the current state of information submitted doesnot allow for a fully comparative assessment. In any case, special referenceto individual national replies would not add real value to the general resultsof assessment. The third reason is of a purely technical nature. The participatingstates did not usually include in their reports documents relating to constitutional

186 PART II

and legislative frameworks and procedures.1 Thus there is no opportunity todirectly check compliance and the precision of relevant information exchanged.

The present study offers a combination of an appropriate amount of relevantdata and generalisable and comparable information. Its objective is to reflectthe broad variety, scope and complexity of information that has been providedby the 55 participating states between 1999 and 2002. Section 1 (in accordancewith the relevant outline based in Part I of the Study on the Code of Conduct)draws up an assessment framework on the basis of a thematic analysis of the1998 Questionnaire and Code of Conduct. Section 2 evaluates the informationexchanged on the Code of Conduct (1999-2002) according to the assessmentframework. Section 3 discusses the Code’s efficiency with special focus on thedemocratic control of armed forces. The concluding chapter also summarisesthe main results, tendencies and shortcomings of the information exchange anddiscusses how the information exchange and implementation of the Code couldbe improved.

1 The 1998 Questionnaire notes in the introductory sentence: “Participating states willsupply relevant information (including documents where appropriate) …” (FSC.DEC./4/98, 8 July 1998).

1

ASSESSMENT FRAMEWORK

The OSCE participating states, between 1999 and 2002, exchanged informa-tion on the implementation of the Code of Conduct on the basis of a standardQuestionnaire adopted by the Forum for Security Cooperation in 1998.3 Withitem 4 of the Questionnaire, the participating states reported on the democraticpolitical control not only of the regular military forces, but also of paramilitaryand internal security forces, as well as intelligence services and the police. Theinformation exchange thus reflects the Code of Conduct as ‘the OSCE’s centraldocument on civil-military interaction and security sector control’.4

Section 1 of the present analysis draws up an assessment framework takinginto account four analytical aspects. First it analyses, from a terminologicalpoint of view, the concept of ‘armed forces’ used in the Code and the Question-naire and evaluates to what extent the security sector as a whole is actuallyreflected in both documents. Second, the Code’s provisions are compared withrelevant documents of the European Union, NATO and the Partnership for PeaceProgramme in order to identify distinct and complementary elements with regardto the regime of democratic control of armed forces. This chapter also proposesa sub-regional assessment framework for the evaluation of the informationexchange. Third, the connection between the 1998 Questionnaire and the Code

3 FSC.DEC/4/98. 8 July 1998.4 Márton Kraznai: Promoting democratic control of the armed forces in South-East

Europe: the role of the OSCE. EAPC/SEEGROUP Workshop on Civil-Military Inter-action in Security Management: The Case of South East Europe, Sofia, 27-28 June 2002.(Centre for International Security Policy, Federal Department of Foreign Affairs, Bern,September 2002, Collection of Documents), p. 22.



188 PART II

is examined in order to identify the provisions of the Code referred to in the10 items of the latter.5 Fourth, and in view of Section 2 of the present analysis,a specific evaluation outline is elaborated on the basis of a thematic analysisof the Questionnaire.

1.1 The Concept of ‘Armed Forces’

With paragraph 20 of the Code,6 basically the whole range of the securitysector is in focus. However, most of the other provisions of the Code refer tothe regular military or armed forces. On the basis of a terminological analysis,this chapter therefore examines to what extent the Code and the Questionnaireactually cover relevant armed services.

1.1.1 The Code and the Security Sector

The broad concept of armed forces introduced by paragraph 20 of the Codeencompasses virtually the whole spectrum of the armed public security sector.Its five categories of forces and services have already been mentioned in the1991 Moscow Document on the Human Dimension. However, the two relevantparagraphs of both documents slightly differ with regard to the categories offorces. The following table compares paragraph 20 of the Code with paragraph25 of the Moscow Document and highlights the elements related to the securitysector:

5 It is important to note that in 2003, the OSCE Forum for Security Cooperation updatedthe 1998 Questionnaire (FSC.DEC/4/03, 9 April 2003). The new 2003 Questionnaireis annexed to Part II (see annex 7 and also the comments in chapter 3.2.1). This analysis,however, assesses the period of information exchange between 1999-2002, which wascarried out on the basis of the 1998 Questionnaire.

6 “The participating states consider the democratic political control of military, paramilitaryand internal security forces as well as intelligence services and the police to be anindispensable element of stability and security. They will further the integration of theirarmed forces with civil society as an important expression of democracy.” (Paragraph20 of the Code of Conduct).

1 – ASSESSMENT FRAMEWORK 189

Code of Conduct Moscow Document

“The participating states consider thedemocratic control of military, para-military and internal security forcesas well as of intelligence services andthe police to be an indispensableelement of stability and security. Theywill further the integration of theirarmed forces with civil society as animportant expression of democracy.”(§ 20)

“The participating states will: – ensurethat their military and paramilitaryforces, internal security and intel-ligence services, and the police aresubject to the effective direction andcontrol of the appropriate civil author-ities (§ 25.1); – maintain and, wherenecessary, strengthen executive controlover the use of military and para-military forces as well as the activitiesof the internal security and intel-ligence services and the police(§ 25.2); – take appropriate steps tocreate, wherever they do not alreadyexist, and maintain effective arrange-ments for legislative supervision of allsuch forces, services and activities.”(§ 25.3)

1.1.2 Military, Paramilitary and Security Forces

In the case of the third category, the above-mentioned Moscow Documentuses the term ‘internal security services’, while the Code refers to ‘internalsecurity forces’. There is no indication, either in the Code or in the MoscowDocument, of what could be the possible distinction between ‘services’ and‘forces’.

In both Documents, the security sector is considered according to threegroups of forces or services. However, in the Moscow Document, ‘internalsecurity’ is associated with intelligence through the common use of the notionof ‘services’. Contrary to this, the Code associates ‘internal security’ withmilitary and paramilitary through the common use of the notion of ‘forces’.Neither the Moscow Document nor the Code contains conceptual guidelineson the structure of the security sector.

This is particularly true with regard to paramilitary and internal securityforces as well as intelligence services. The comparison of the security sectorreferred to in the Code and the Moscow Document just allows the division ofthe security sector into three main groups: (A) military and paramilitary forces;(B) intelligence and security services; (C) police. However, one paradoxical

190 PART II

outcome of such an outline is that the forces/services for ‘internal security’figure in both groups A and B. Compared to this, the Police (group C), fornatural reasons, has precisely that sort of mission, but notions like ‘internalsecurity forces/services’ have not been used in parallel with the Police by eitherthe Code or the Moscow Document:

A B C

Code of Conduct Military, para-military and inter-nal security forces

Intelligenceservices

Police

Moscow Document Military and para-military forces

Intelligence andinternal securityservices

Police

Furthermore, there is a certain inconsistency with regard to the enumerationof the five categories of forces and services in the Code and the Questionnaire.Paragraph 20 of the Code lists five categories of forces and services of thesecurity sector the first of which is ‘military (forces)’. Item 4 of the Question-naire does not follow this outline. It uses the general notion ‘armed forces’ forthe first category.

While the military and the armed forces are generally perceived as identicalconcepts, there is no objective reason why the Questionnaire should use adifferent notion from the Code itself. One may in turn conclude that bothnotions mean precisely the same.

Even within the Questionnaire, there is a certain terminological discrepancy.While item 4 uses the above-mentioned five categories of forces/servicesforming the security sector, items 5 and 6 both use only three categories offorces. Moreover, the third category of item 4 (‘internal security forces’) doesnot correspond with the third category of items 5 and 6 (‘security forces’):7

7 This time, however, the wording of the Questionnaire is consistent with the correspondingparagraphs of the Code.


Item 4 of the Questionnaire Items 5 and 6 of the Questionnaire

Military (Forces) Military (Forces)

Paramilitary (Forces) Paramilitary (Forces)

Internal Security (Forces) Security Forces

Intelligence Services -

Police -

Neither the Code nor the Questionnaire contain information on possibledistinctions and relationships between notions like ‘internal security forces’and ‘security forces’. For instance, it is not clear whether the use of the notion‘security forces’ automatically encompasses also the intelligence services andthe police.8

The general confusion about the terminology related to the security sectoris also demonstrated by the Council of Europe Parliamentary Assembly’sRecommendation 1402 (1999) on ‘Control of internal security services’,addressing the issue of the intelligence services. While the idea of establishinga framework convention on the issue was rejected by the Committee of Minis-ters in 2000, the latter decided to consider setting up a new committee of expertsfor ‘internal security services’. This specialists committee should elaborate areport and put forward recommendations for the control of these services.9

Since the participating states often use different terminology, which mustbe seen in connection with their own individual national traditions, the Codealso establishes an implicit distinction between regular and irregular para-military forces. The Code provides for sustainable democratic control of the

8 The Handbook for parliamentarians on the parliamentarian oversight of the security sectoridentifies the main operational components of the security sector as follows: the military,other state militarised organisations, police structures, secret and intelligence services,private security and military companies. The handbook emphasises that the categoryof ‘other state militarised organisations’ (OSMOs) “may have different meanings accord-ing to the setting and the countries in which they are used ... (and that they) ... haveto be distinguished from private militarised organisations”. Parliamentary Oversightof the Security Sector; Principles, Mechanisms, Practices. Handbook for parliamentarians,No. 5 – 2003; DCAF, IPU, Geneva 2003, p. 58.

9 The Parliamentary Assembly Recommendation 1402 on “Control of internal securityservices in Council of Europe member states” on 26 April 1999; Parliamentary Assemblyof the Council of Europe: Doc. 8907 of 14 December 2000 (Reply from the Committeeof Ministers to Recommendation 1402).

192 PART II

five regular state forces and services mentioned in paragraph 20 and that theseforces are to be guided and controlled by constitutionally established authoritiesvested with democratic legitimacy and under legal responsibilities. With para-graph 2510 of the Code, however, the participating states are also committednot to tolerate or support irregular forces, which means those ‘uncontrolled’by the authorities. Such forces may be, for instance, non-state paramilitaryforces. Consequently, paragraph 25 provides for the opportunity to seek con-sultations with the OSCE if a participating state is not in the position to exerciseits authority over such forces. Moreover, the participating states had adoptedparagraph 2611 of the Code, agreeing that their paramilitary forces shouldrefrain from the acquisition of (excessive) combat mission capabilities. Thusthe participating states have closed a gap allowing existing agreements on armedforces to be circumvented.12

1.1.3 Terminology Used in Sections VII-VIII

The examination of the terminology concerning the democratic control anduse of armed forces used in Sections VII and VIII (Paragraphs 20-37) of theCode, shows that no less than seven different terms and notions are used torefer to the same: ‘armed forces’; ‘military (forces)’; ‘paramilitary forces’;‘internal security forces’; ‘security forces’; ‘intelligence services’; ‘police’. Someof the Code’s paragraphs also use the general notion of ‘forces’/‘services’ alone:

Code ‘Forces’/‘Service’s

‘ArmedForces’

‘Military(Forces)’

‘Para-MilitaryForces’

‘InternalSecurityForces’

‘SecurityForces’

‘Intel-ligence

Services’

‘Police’

§ 20 × × × × × ×

§ 21 × × × ×

10 “The participating states will not tolerate or support forces that are not accountable toor controlled by their constitutionally established authorities. If a participating state isunable to exercise its authority over such forces, it may seek consultations within theOSCE to consider steps to be taken.” (Paragraph 25 of the Code of Conduct).

11 “Each participating state will ensure that in accordance with its international commit-ments its paramilitary forces refrain from the acquisition of combat mission capabilitiesin excess of those for which they were established.” (Paragraph 26 of the Code ofConduct).

12 Márton Kraznai, op. cit., p. 23.


Code ‘Forces’/‘Service’s

‘ArmedForces’

‘Military(Forces)’

‘Para-MilitaryForces’

‘InternalSecurityForces’

‘SecurityForces’

‘Intel-ligence

Services’

‘Police’

§ 22 × ×

§ 23 × ×

§ 24 ×

§ 25 ×

§ 26 ×

§ 27 × × ×

§ 28 × ×

§ 29 ×

§ 30 ×

§ 31 ×

§ 32 × ×

§ 33 ×

§ 34 ×

§ 35 ×

§ 36 ×

§ 37 ×

TotalUse 5 times 13 times 8 times 5 times 1 time 3 times 1 time 1 time

While the individual paragraphs of Sections VII and VIII of the Code referto different concepts or branches of armed and security forces, there seems tobe no consistency in this multiple use of terminology. Nevertheless, the distribu-tion of terms shows that ‘Armed Forces’ and ‘Military’ (forces) are the mostused terms within Sections VII-VIII of the Code. Moreover, Section VIIIexclusively uses the notion ‘armed forces’. Accordingly, most of the provisionsactually refer to the regular military or defence forces. Amongst the othercategories of forces and services, ‘Paramilitary Forces’ is the only specificcategory used by one paragraph (26) exclusively. Compared to this, ‘SecurityForces’ is used only in connection with the armed or (regular) military forces.Moreover, the ‘Intelligence Services’ and the ‘Police’ are mentioned once(within paragraph 20). Finally, general terms such as ‘Forces’ or ‘Services’ areused within five paragraphs. The Code neither provides guidelines on the scope

194 PART II

and structure of the armed forces, nor does it explain the concept of regulararmed forces from a terminological and conceptual aspect.

As a result, the information exchange between the OSCE participating statesis largely focused on the regular military forces. However, due to the lack ofconsistency and coherence in the use of terminology related to other forcecategories and the fact that neither the Code nor the Questionnaire containguidelines, the participating states, when reporting to the Questionnaire mayinterpret the individual notions and terms according to their own perceptionsor national traditions.

1.2 The Code and the Euro-Atlantic Enlargement Process

The negotiation and implementation of the OSCE Code of Conduct hastaken place at the same period as the enlargement processes of the EuropeanUnion, NATO and the Partnership for Peace Programme. While the EuropeanUnion played an important role in the negotiation of the Code, the NATOPartnership Work Programme refers to the need to make further improvementsin the implementation of the Code of Conduct.13 Moreover, the EU has estab-lished membership criteria for democracy, and relevant documents of the NATOenlargement process and the Partnership for Peace Programme contain explicitobjectives of the democratic control of armed forces. Especially within thePartnership Work Programme a detailed list of relevant goals and standardsis included. This chapter therefore evaluates Euro-Atlantic expectations in thefield of democracy and civil-military relations in order to identify distinct andcomplementary elements between them and the Code. It also proposes a sub-regional assessment framework for the evaluation of the information exchangeon the Code.

1.2.1 EU Criteria for Democracy

Within the period of the negotiation of the Code of Conduct (1992-1994)the Member states of the European Council agreed in Copenhagen in 1993 thatassociated countries in Central and Eastern Europe wishing to become membersof the European Union should have the opportunity to accede provided they

13 See also chapter 1.2.2.


satisfied certain economic and political conditions. These Membership Criteriaof the European Union are also referred to as the ‘Copenhagen Criteria’. Inorder to accede to the Union, the candidate country must have achieved: (a)stability of institutions guaranteeing democracy, the rule of law, human rightsand respect for and protection of minorities; (b) the existence of a functioningmarket economy as well as the capacity to cope with competitive pressure andmarket forces within the Union; (c) the ability to take on the obligations ofmembership including adherence to the aims of political, economic andmonetary union.

In addition, the candidate must have created the conditions for its integrationthrough the adjustment of its administrative structures, so that European Com-munity legislation transposed into national legislations is implemented effective-ly through appropriate administrative and judicial structures.14

EU and NATO standards in the field of democracy and civil-militaryrelations show that both organisations set forth complementary criteria andobjectives of democracy and civil-military relations. The EU has establishedfirm membership conditions to be met by candidate countries, before they areinvited to adhere to the Union. However, the ‘Copenhagen Criteria’ do not referto civil-military relations but concentrate on the general economic and politicalstandards of the EU and the condition of their administrative applicability. Inthe case of NATO the picture is the reverse. The Alliance’s enlargement andEAPC/PfP programmes set forth not only general political expectations withregard to civil-military relations. The Partnership Work Programme in particularcontains detailed expectations with regard to the democratic control of armedforces. However, these patterns are neither ‘criteria’ nor ‘conditions’ for as-sociated and candidate countries. Indeed, the North-Atlantic DCAF-Patternsof both PfP and MAP offer the Partners the opportunity to determine their ownpreferences and priorities.

14 EU Enlargement/ Copenhagen Criteria, web edition: http://europa.eu.int/comm/enlarge-ment/intro/criteria.htm, pp. 1-2. At the Cologne European Council, the European Com-mission adopted regular reports (1998-2002) and a more general composite paper onthe progress made by each of the candidate countries (COM (1999) 500-513 19/10).The Commission suggested that the institutional reform of the European Union (itself)should be in force by 2002 to allow the accession of the first candidates that fulfilledthe criteria. The 2000 Nice Council welcomed the accession negotiations with candidatecountries, which brought very considerable progress. The 2001 Göteborg Summit ofthe European Union appreciated the efforts made by the candidates and asked them tocontinue and speed up the necessary reforms to prepare themselves for accession,particularly as regards the strengthening of their administrative capacity. Ibid. p. 3.

196 PART II

1.2.2 NATO and the Partnership for Peace Programme

Relevant documents of the NATO enlargement process and the Partnershipfor Peace Programme all refer to the principle of democratic control of armedforces. They are examined within three following sub-chapters: The Partnershipfor Peace Framework Document and the Study on NATO Enlargement; TheNATO Membership Action Plan; The Partnership Work Programme.

Right before the entry into force of the Code of Conduct (1 January 1995)the Ministerial Meeting of the North-Atlantic Council/North Atlantic Coopera-tion Council adopted, in 1994, the Partnership for Peace (PfP) FrameworkDocument. It expressed the ‘joint conviction that stability and security in theEuro-Atlantic area can be achieved only through cooperation and commonaction. Protection and promotion of fundamental freedoms and human rights,and safeguarding of freedom, justice, and peace through democracy are sharedvalues fundamental to the Partnership’.15 The same paragraph states that boththe NATO member states and other states subscribing to the PfP FrameworkDocument are committed to the preservation of democratic societies, theirfreedom from coercion and intimidation, and the maintenance of the principleof international law.16

The PfP Framework Document refers to democratic standards only in generalterms. However, with item 3a and 3b it spells out two general objectives ofdemocratic civil-military relations: (i) Facilitation of transparency in nationaldefence planning and budgeting processes; (ii) Ensuring democratic controlof defence forces.

Two aspects specific to the PfP Framework Document may be highlighted.First, it refers to the concept of ‘defence’ (forces) and not to the concept of‘armed forces’. Second, it emphasises the importance of transparency in defenceplanning and budgeting.

In 1995, the same year of the entry into force of the Code of Conduct, theStudy on NATO’s Enlargement stated that enlargement was a further steptowards the Alliance’s basic goal of enhancing security and extending stabilitythroughout the Euro-Atlantic area, complementing broader trends towardsintegration, notably the enlargement of the EU and the strengthening of theOSCE. It also reflected the Alliance’s expectations with regard to democraticcontrol. But unlike the membership criteria of the EU, NATO does not establishpre-conditions with regard to certain standards for new member states, but

15 Web edition: http://www.nato.int/docu/comm/49-95/c940110b.htm. Paragraph 2, p. 1.16 Ibid.


encourages and supports democratic reforms, including the establishment ofcivilian and democratic control over military forces.17 However, the Studyalso mentions that candidate countries shall solve ethnic, internal jurisdictional,irredentist claims or external territorial disputes by peaceful means and inaccordance with OSCE principles, before they can become NATO members.18

In 1999, the year of the first official Information Exchange on the Codeof Conduct, the first three countries of Eastern Central Europe became NATOmembers. In the same year NATO launched its Membership Action Plan (MAP)in order to reinforce the commitments to further enlargement by putting intoplace a programme of activities to assist aspiring countries in their preparationsfor possible future membership in the Alliance. MAP is also a practicalmanifestation of the NATO Open Door policy, which is enshrined in Article10 of the North Atlantic Treaty.19

The first Section of the MAP on Political and Economic Issues also recallsthe European Council’s Copenhagen Criteria on economic and political con-ditions established in 1993 (see above). This first Section of the MAP containsno less than 13 expected standards with regard to NATO membership, includingdemocratic control of armed forces. However, unlike the firm conditions formembership of the EU, the MAP document explicitly refuses to establishmembership criteria: ‘The list of issues identified for discussion does notconstitute criteria for membership and is intended to encompass those issueswhich the aspiring countries themselves have identified as matters which theywish to address.’20 With item 2d of the MAP, NATO membership candidatesare expected to ‘establish appropriate democratic and civilian control of thearmed forces’.21

Three aspects specific to the MAP may be highlighted. First, it refers to‘armed forces’ and not to ‘defence forces’ (as is the case with the PfP Frame-

17 NATO Handbook 2001, web edition: http://www.nato.int/docu/handbook/2001/hb030010-1.htm. p. 1.

18 Ibid. p. 2.19 NATO MAP factsheet, web edition: http://www.nato.int/docu/facts/2000/nato-map.htm,

p. 2. The MAP factsheet also notes: ‘The MAP gives substance to NATO’s commitmentto keep its door open, although its does not guarantee future membership, nor does thePlan consist simply of a checklist for aspiring countries to fulfil. Decisions to inviteaspirants to start accession talks will be taken within NATO by consensus and on acase-by-case basis.’ Ibid, p. 1.

20 NATO Membership Action Plan (MAP), web edition: http://www.nato.int/docu/pr/1999/p99-066e.htm. pp. 1-2.

21 Ibid. p. 3.

198 PART II

work Document). Second, it uses the notion of ‘appropriate’ democratic controlof armed forces. This may be related to the circumstance that there is no singlemodel and that all countries (even the traditional NATO members) have theirown approaches to the concept. Third, it emphasises the importance of civiliancontrol.

Furthermore, item 2g of the MAP underscores that aspirants are expectedto continue fully to support and be engaged in the Euro-Atlantic PartnershipCouncil (EAPC) and the Partnership for Peace (PfP).22 Accordingly, the MAPdoes not replace the PfP programme, and like PfP, the MAP is guided by theprinciple of self-differentiation.23

During the period of the Information Exchange on the Code of Conduct(1999-2002) the NATO Partnership Work Programme 2000-2001 was adopted.The document takes up the two basic elements of the PfP Framework Document(transparency in defence planning; democratic control of armed forces) andestablished sub-categories and objectives. The detailed elements of democraticcontrol of armed forces contained in section 624 of the Partnership Work Pro-gramme are summarised in the following table:

22 Ibid.23 NATO MAP factsheet, web edition: http://www.nato.int/docu/facts/2000/nato-map.htm.

p. 1. In the perspective of the forthcoming chapter on the Partnership Work Programme2000-2001, it may be interesting to note some terminological differentiations made withinthe different NATO documents. For instance, the MAP factsheet stipulates that a broadspectrum of issues is covered by the plan and that aspirant countries are expected, interalia, to ‘establish democratic control of their armed forces’. The MAP itself uses thenotion ‘appropriate democratic and civilian control of their armed forces’. While thefurther specification ‘civilian control’ is not spelled out in the PfP Framework Document,the attribute ‘appropriate’ within the MAP relatively weakens NATO’s expectationswith regard to democratic control. This is also reflected in the Partnership Work program-me 2000-2001, to be commented on in the next chapter. A second remark is with regardto the concept of the armed forces. While the PfP Framework uses the notion ‘defenceplanning’ and (democratic control of) ‘defence forces’, the chapter of the NATO hand-book on the Study on Enlargement makes clear that democratic control is with regardto ‘military forces’. Compared to this, the MAP introduces the term ‘armed forces’.This is interesting insofar as a certain shift can be observed in the case of the PartnershipWork Programme 2000-2001, containing a chapter on (democratic control of) ‘forcesand Defence Structures’. The final remark with regard to the wording of the documentsand commitments concerned is the difference made between ‘ensuring’ (democraticcontrol) in the case of the PfP Framework Document, and ‘establishing’ (democraticcontrol) in the event of the MAP.

24 NATO Partnership Work Programme, web edition: http://www.nato.int/pfp/docu/d990616a.htm. p. 5-6.


Further Discussion onConcepts like the:

Encourage and ImproveAspects like:

Information Exchangeon Defence Structureslike:

Seat of authority: consti-tutional and legal checksand balances in the secur-ity and defence fields

Defence and securityrelated education forcivilian cadres and staffin government andparliament

The structure,organisation and roles ofa Defence Ministry in ademocratic society andcivil-military interface ina Defence Ministry

Process of interactionbetween government,parliament and the armedforces; parliamentaryoversight of decision-making in defence

Development of balancedcivil-military relationsincluding the military’srole and image in ademocratic civic societyand the role of con-scription if any.

The structure andorganisation of the armedforces (including com-mand structures) in ademocratic society

Defence reform: reconcil-ing military culture andtradition with the re-structuring of the defenceestablishment

The use of modern in-formation technology forthe access to and pro-vision of free flow DPSinformation

The role of ReserveForces and Mobilisation

Need for military’s poli-tical neutrality; participa-tion of the military inpolitical life

Other Personnel issuesunder a system ofbalanced civil-militaryrelations

Role of the media and ofindependent civilian ex-pertise on security

Military training and theuse of military forces tosupport civilian author-ities

Progress in the imple-mentation of the OSCECode of Conduct

200 PART II

Compared with the Partnership Framework Document and the MembershipAction Plan, the (heading of) Section 6 neither refers to ‘armed forces’ nor‘defence forces’; it uses the notion ‘forces and defence structures’. This term-inology indicates that here, the relevant objectives do not exclusively targetthe regular military defence forces, but also other parts of the security sector.Furthermore, it may be noted that the use of notions like to (further) ‘discuss’,to ‘encourage’ or to ‘improve’ (respective goals) is clearly weaker than thewording used in the case of the other Sections of the Partnership Work Pro-gramme, using a more direct and stronger terminology.25

Nevertheless, Section 6 stipulates that progress in the implementation ofthe OSCE Code of Conduct shall be discussed.26 Interesting also is the issueof information exchange on concepts of defence structures.27 This might beof comparative interest vis-à-vis the information exchange on the Code ofConduct within item 4 of the Questionnaire, requesting information on fiveexplicit forces and services of the security sector. Both information exchangesmay therefore be complementary parts in the process of enhancing transparencyof defence and security structures in the OSCE region.

In addition, Section 7 of the Partnership Work Programme on ‘DefencePlanning, Budgeting and Resource Management (DPB)’ reflects item 3a of thePfP Framework Document (‘facilitation of transparency in national defenceplanning and budgeting process’). Emphasising the importance of resourcemanagement, this section therefore relates to specific political-economic ob-jectives of democratic civil-military relations and the requirements to establishnot only effective but also efficient defence structures: (A) promotion ofeffective defence planning and budgeting processes under democratic control;(B) promotion of efficient and effective force structures that are interoperablewith those of NATO and of NATO countries in areas agreed under PfP; (C)promotion of transparency in defence planning and budgeting between andamong PfP Partners and the Alliance; (D) improvement of the use of moderninformation technology for access to, and the provision of, the free flow of DPBinformation.28

25 None of sections 1-5 and 7-21, for instance, use the introductory verb to ‘discuss’ butstronger wordings like: (to) ‘improve’, ‘harmonise’, ‘promote’, ‘support’, ‘develop’,‘familiarise’, ‘exchange (information)’, ‘participate’, ‘involve’, ‘organise’, ‘make’,‘expand’, ‘enhance’, ‘facilitate’, ‘coordinate’, ‘assist’, ‘cooperate’, ‘evaluate’, ‘review’,‘take’, ‘foster’, ‘create’, ‘apply’, ‘encourage’, ‘dispatch’, etc. (ibid.).

26 Ibid. p. 6.27 Ibid.28 Ibid. p. 7. The fourth aspect is identical with the corresponding one under Section 6.


The terminology and formulations used in Euro-Atlantic documents showthat NATO’s political expectations in the field of democratic control of armedforces are apparently ‘not as strict’ as in the areas of the more technical ob-jectives of interoperability. Nevertheless, since the Partnership Work Programme2000-2001 stipulates that progress in the implementation of the OSCE Codeof Conduct shall be discussed, it may be useful to compare Sections 6 and 7of the Partnership Work Programme with the provisions of the Code, in orderto identify corresponding, distinct or complementary elements of democraticcontrol of armed forces.

There is also an interesting correspondence with regard to the structure ofthe Questionnaire and the relevant PfP Documents. For instance, the notionof ‘defence planning’ as such is not used in the Code of Conduct.29 Neverthe-less, item 2 and item 4 of the 1998 Questionnaire actually reflect the distinctionwhich is made in the PfP Framework Document between Transparency inDefence Planning on the one part, and Democratic Control of Armed Forceson the other part. Furthermore, the comparison shows certain elements lackingin the Questionnaire are neither contained in the Code. For instance, item 2of the Questionnaire neither uses the word ‘transparency’ nor requests informa-tion on defence planning. These two elements are contained in Section 7 ofthe Partnership Work Programme 2000-2001.

The following table summarises 14 complementary elements of the Partner-ship Work Programme, which are not or not explicitly provided by the Codeof Conduct:

1 Defence Reform

2 Transparency and Democratic Control of Defence Planning and Bud-geting

3 Defence Planning Resource Management

4 Democratic Control of Forces and Defence Structures

5 Checks and Balances and Interaction between constitutional author-ities30

29 Within the framework of the OSCE, the issue of defence planning is addressed by the1999 Vienna Document on Confidence- and Security Building Measures.

30 In spite of using the term ‘constitutionally established authorities’, the Partnership WorkProgramme emphasises the constitutional and legal checks and balances and interactionbetween authorities.

202 PART II

6 Competencies of parliament, government and the Armed Forces31

7 Parliamentary Oversight of Defence Decision-Making32

8 Reconciliation of the restructuring of the defence establishment withmilitary culture and tradition33

9 Regulation of the principle of the political neutrality of the military34

10 Enhancement of civilian defence expertise in Ministries, parliament andcivil society (media)

11 Civil-Military Cooperation and military support of civilian author-ities35

12 Conscription and the military’s role and image in a democratic civicsociety36

31 Within the national authorities it distinguishes between the government, parliament andthe Armed Forces. This is different to item 2 of the Questionnaire using the dual-outline‘Parliament and Ministries’, this triple-outline permits the placing of the minister ofdefence closer to the government, and the Chief of General Staff closer to the ArmedForces.

32 Neither the Code nor the Questionnaire refers explicitly to parliamentary oversight, theprinciple is implicitly provided by paragraph 22 of the Code (referred to also by item2 of the Questionnaire).

33 The Partnership Work Programme expressly reflects the process of defence reform (seepoint 1). This objective contained in the Partnership Work Programme is particularlyrelevant also for reform in transition countries in Central and Eastern Europe. It mayalso be considered as an important prerequisite of the armed forces’ (re-)integrationwith the rest of society.

34 The principle is particularly important in post-communist armed forces. However, theCode does merely refer to the general requirement of the armed forces’ political neutral-ity, but does not stipulate that it should actually be regulated. And while the 1998Questionnaire does not request information on the principle, it was contained in the1997 trial Questionnaire.

35 Sometimes abbreviated with ‘CIMIC’. Civil-Military Cooperation has especially evolvedin the framework of Peace Support and Humanitarian Relief Operation. The aspect of‘military support to civilian authorities’ is often mentioned in the framework of managingnatural catastrophes and other civil urgencies. However, and in particular also with regardto the Code, this is of particular relevance also in the special case of the armed forces‘internal security missions’ and operations, which are usually under the command ofthe police authority. This aspect, for instance, is not addressed by the Code.

36 This may be a complementary aspect to the provision of paragraph 20 of the Codestipulating that the armed forces’ integration into civil society is an important expressionof democracy.


13 Balanced civil-military relations and the civil-military interface indefence ministries37

14 Mobilisation, personnel issues and the role of the reserve forces38

In sum, one may judge that the Partnership Work Programme is more preciseor detailed than the Code with regard to the elements related to the civiliancontrol of the armed forces. The Code of Conduct in turn provides, with SectionVIII, specific and innovative provisions on the democratic use of armed forces,including in the framework of internal security missions. However, while thesetopics are not addressed by the Partnership Work Programme at all, the SectionVIII provisions have not been reflected in the 1998 Questionnaire either.39

1.2.3 Sub-Regional Dimensions of the Information Exchange

In the perspective of the evaluation of the information exchange in partII of the present analysis, it may be worth noting that it is strictly anonymous,offering the main trends of the general reporting under the 1998 Questionnaire.The assessment therefore does not refer to any particular national report as such.

However, and given that 80% of the information exchange relates to issuesof democratic control of armed forces and the fact that the negotiation andimplementation process coincides conveniently with the Euro-Atlantic integrationprocess, the analysis, where appropriate, distinguishes between established andemerging democracies.

Although a general distinction between established and emerging demo-cracies makes sense for the assessment of most of the information exchangedon the Code of Conduct, such a distinction is sometimes imprecise and canhardly reflect the comparative effects of the dynamic democratic transitionprocesses of the countries of Central and Eastern Europe since the end of theCold War. If one takes into account the additional factor of the major sub-regional cooperation and integration processes, one may also distinguish between

37 Indicating also the need for the clarifying of competencies and chains of commandbetween senior officers and civil servants.

38 Although the Code contains general provisions on recruitment and call-up procedures,the issue of mobilisation and the role played by the reserve forces are not addressedor reflected in the Questionnaire.

39 See also the above comparison with the 1997 trial Questionnaire.

204 PART II

the established democracies, newly admitted EU and NATO members or thosewith prospects of joining these organisations soon, and ‘other countries’ whichhave other cooperation arrangements or countries that do not have any prospectof joining NATO or the EU in the near future:40

Established Democracies(countries belonging toEU or NATO prior tothe collapse of com-munism; + Switzerland)

New and forthcomingEU and NATO members

Other countries (interalia CIS countries;countries of the WesternBalkans)

Austria; Belgium;Canada; Denmark; Fin-land; France; Germany;Greece; Iceland; Ireland;Italy; Luxembourg;Netherlands; Norway;Portugal; Spain; Sweden;Turkey; United Kingdom;United states of America(+ Switzerland)

Bulgaria; Cyprus; CzechRepublic; Estonia;Hungary; Latvia;Lithuania; Malta; Poland;Romania; Slovakia;Slovenia

Albania; Bosnia andHerzegovina; Croatia;Serbia and Montenegro;Armenia; Azerbaijan;Belarus; Georgia;Kazakhstan; Kyrgyzstan;Macedonia; Moldova;Russia; Tajikistan; Turk-menistan; Ukraine;Uzbekistan

21 12 17

1.3 The Connection between the Code of Conduct and the 1998 Question-naire

This section explores the elements of the Code subject to the 1998 Question-naire as well as the ratio between inter- and intra-state elements covered bythe Code and the Questionnaire.

1.3.1 The Elements of the Code Reflected in the Questionnaire

The individual items of the Questionnaire – with the exception of item 10(‘Any information’) – refer to certain paragraphs and individual provisions of

40 The remaining five participating states (Andorra; Holy See; Liechtenstein; Monaco; SanMarino) constitute micro states with no armed forces of their own.


the Code. Those parts of the Questionnaire which are drafted in accordancewith the corresponding provisions of the Code can be summarised as follows:

Questionnaire Code

Item 1 Appropriate measures to prevent and combat terror-ism, in particular participation in international agree-ments to that end

§ 641

Item 2 National planning and decision-making process fordetermination of the military posture, including:(a) the role of parliament and ministries;(b) public access to information related to the armedforces

§ 1342;§ 2243

Item 3 Stationing of armed forces on the territory of anotherparticipating state in accordance with their freelynegotiated agreement as well as in accordance withinternational law

§ 1444

41 “The participating states will not support terrorist acts in any way and will take ap-propriate measures to prevent and combat terrorism in all its forms. They willcooperate fully in combating the threat of terrorist activities through implementationof international instruments and commitments they agree upon in this respect. Theywill, in particular, take steps to fulfil the requirements of international agreements bywhich they are bound to prosecute or extradite terrorists.”

42 “Each participating state will determine its military capabilities on the basis of nationaldemocratic procedures, bearing in mind the legitimate security concerns of other statesas well as the need to contribute to international security and stability. No participatingstate will attempt to impose military domination over any other participating state.”

43 “Each participating state will provide for its legislative approval of defence expenditures.Each participating state will, with due regard to national security requirements, exerciserestraint in its military expenditures and provide for transparency and public accessto information related to the armed forces.”

44 “A participating state may station its armed forces on the territory of another partici-pating state in accordance with their freely negotiated agreement as well as inaccordance with international law.”

206 PART II

Questionnaire Code

Item 4 Constitutionally established authorities and proceduresto ensure effective democratic political control of:(a) armed forces;(b) paramilitary forces;(c) internal security forces;(d) intelligence services;(e) police.

§ 2045;§ 2146

Item 5 Roles and missions of the following types of forces aswell as controls to ensure that they act solely within theconstitutional framework:(a) military;(b) paramilitary;(c) security forces.

§ 2147

Item 6 Procedures for the recruitment or call-up of personnelfor service in the:(a) military;(b) paramilitary;(c) security forces.

§ 2748

Item 7 Where applicable, legislation or other relevant docu-ments governing exemptions from, or alternatives tocompulsory military service.

§ 2849

45 “The participating states consider the democratic political control of military, para-military and internal security forces as well as of intelligence services and the policeto be an indispensable element of stability and security. They will further the integrationof their armed forces with civil society as an important expression of democracy.”

46 “Each participating state will at all times provide for and maintain effective guidanceto and control of its military, paramilitary and security forces by constitutionallyestablished authorities vested with democratic legitimacy. Each participating state willprovide controls to ensure that such authorities fulfil their constitutional and legalresponsibilities. They will clearly define the roles and missions of such forces andtheir obligation to act solely within the constitutional framework.”

47 See the previous footnote.48 “Each participating state will ensure that the recruitment or call-up of personnel for

service in its military, paramilitary and security forces is consistent with its obligationsand commitments in respect of human rights and fundamental freedoms.”

49 “The participating states will reflect in their laws or other relevant documents therights and duties of armed forces personnel. They will consider introducing exemptionsfrom or alternatives to military service.


Questionnaire Code

Item 8 Instruction on international humanitarian law andother international rules, conventions and commitmentsgoverning armed conflict including in military trainingprogrammes and regulations.

§ 2950;§ 3051

Item 9 Legal and administrative procedures protecting therights of all forces personnel.

§ 3352

Item 10 Any other information. -

The table shows inter alia that while the Questionnaire is basically draftedconsistently with corresponding provisions of the Code, the wording of item2, however, considerably differs from both paragraphs 13 and 22 of the Code(which are reflected in that item).

In order to assess to what extent the 1998 Questionnaire covers the OSCEregime on the democratic control of armed forces, it may also be useful tocompare it with the 1997 trial Questionnaire.53 The latter, used only for aone-off voluntary information exchange in 1997, contained 19 items. Whilethe participating states finally downsized the Questionnaire from 19 to 10 items,items 1, 2, 3, 4, 7, 8, 11, 12, 13, and 14 of the 1997 trial Questionnaire werereintegrated into the 1998 Questionnaire. Accordingly, eight items of the 1997Questionnaire (items 5, 6, 9, 10, 15, 16, 17, 18) were not taken into accountin 1998.

The 1997 trial Questionnaire differed from the 1998 Questionnaire froma technical and substantial point of view. Technically, it contained two additionalitems on implementation arrangements. First, the participating states weresupposed to exchange information on all changes to national legislation, docu-

50 “The participating states will make widely available in their respective countries theinternational humanitarian law of war. They will reflect, in accordance with nationalpractice, their commitments in this field in their military training programmes andregulations.”

51 “Each participating state will instruct its armed forces personnel in internationalhumanitarian law, rules, conventions and commitments governing armed conflictand will ensure that such personnel are aware that they are individually accountableunder national and international law for their actions.”

52 “Each participating state will provide appropriate legal and administrative proceduresto protect the rights of all its forces personnel.”

53 FSC.DD/2/97, 1 October 1997.

208 PART II

mentation and procedures, which are to be made in order to reflect the commit-ments of the Code of Conduct.54 Second, the 1997 trial Questionnaire requestedinformation on the timetables for the translation of the Code into the nationallanguages, as well as its dissemination.55

Substantially, the 1997 trial Questionnaire requested information on sixelements, which are not contained in the 1998 Questionnaire. First, it dis-tinguished between control of the armed forces and guidance to the armedforces, and referred to the general requirement of establishing independent andobjective expertise within the constitutionally established authorities.56 Second,it dealt with the issue of the furthering of the armed forces’ integration intocivil society.57 Third, it took up the issue of the political neutrality of thearmed forces as an institution.58 Fourth, it provided for the combat missioncapabilities of paramilitary forces, including their purpose, strength and equip-ment.59 Fifth, the 1997 version requested information on the reflection of theCode’s provisions on the use of armed forces, including in armed conflict, innational defence policies and military doctrines.60 Sixth, it referred to the con-stitutional procedures governing the assignment of armed forces to internalsecurity missions.61

1.3.2 The Ratio between Inter- and Intra-state Elements

As pointed out in the Introduction to the present book the 42 (untitled)paragraphs of the Code of Conduct may subdivided into three groups:

54 Item 17 of the 1997 trial Questionnaire.55 Item 18 of the 1997 trial Questionnaire.56 Item 5 of the 1997 trial Questionnaire.57 Item 6 of the 1997 trial Questionnaire.58 Item 9 of the 1997 trial Questionnaire.59 Item 10 of the 1997 trial Questionnaire.60 Item 15 of the 1997 trial Questionnaire.61 Item 16 of the 1997 trial Questionnaire.


Inter-state norms Sections I-VI Paragraphs 1-19

Intra-state norms Sections VII-VIII Paragraphs 20-37

Implementation Arrangements and FinalClauses Sections IX-X Paragraphs 38-42

In the text of the Code of Conduct it is possible to (formally) recognisea certain balance between inter-state and intra-state norms. However, this isnot the case for the Questionnaire. The latter shows a predominance of intra-state aspects of the Code. Only item 1 and item 3 refer to inter-state elementsof the Code. The following table provides an overview of both the structureand the contents of the Questionnaire:

Code Questionnaire Intra-state Provisions63 Inter-state Provisions

§ 6 Item 1 Combating of Terror-ism

§ 13 Item 2a National planning & militaryposture

§ 22 Item 2b Access to information

§ 14 Item 3 Stationing of ArmedForces

§ 20;§ 21

Item 4 Constitutional arrangements

§ 21 Item 5 Roles and missions of armedforces

§ 27 Item 6 Recruitment/call-up

2 Item 7 Exemptions from/alternativesto compulsory military service

§ 29;§ 30

Item 8 IHL

§ 33 Item 9 Legal protection of armedforces personnel

- - (Any other information)

210 PART II

Moreover, items 2, 4, 5, 6, 7, 8, 9 of the Questionnaire, which refer to theintra-state provisions of the Code, concern almost exclusively Section VII onthe democratic control of armed forces. The only exception is item 2 referringalso to one paragraph (§ 13) of the inter-state section IV of the Code. Accord-ingly, and given that item 10 has not to be counted,62 quantitatively (not qual-itatively) 80% of the Questionnaire actually refers to issues related to thedemocratic control of armed forces.63

Compared to the Questionnaire, the issue of the democratic control of armedforces (Sections VII-VIII; §§ 20-37) quantitatively covers only about 50% ofthe Code,64 given that the first 19 paragraphs of the Code (Sections I-VI) aredealing with inter-state provisions and have no direct connection with theprinciple of democratic control.

1.4 The Questionnaire Viewed from a Thematic Perspective

This section analyses the Questionnaire from a thematic perspective andproposes a respective evaluation outline for Section 2. The 1998 Questionnairecovers two thematically overlapping areas and may be broken down into fourthematically distinct topics for the evaluation of the information exchange.

1.4.1 Overlaps Between Individual Items of the Questionnaire

Within the then items of the 1998 Questionnaire, there are two thematicallyoverlapping areas. There are connections between items 2, 4 and 5 and alsobetween items 6, 7 and 9:

62 Item 10 on ‘Any information’ not counted.63 Lambert, Alexandre, “Towards an Enchanced Implementation of the OSCE Code of

Conduct – Some Considerations and Suggestions in the Perspective of the 3rd Follow-upConference”, FSC.DEL/494/02, 13 September 2002.

64 If not counting the five last paragraphs 38-42 of Sections IX-X of the Code on imple-mentation arrangements.


item 2 →← item 4 item 6 →← item 7

↑↓ ↑↓ ↑↓ ↑↓

item 5 item 9

item 2 National planning and decision-making process for the determination ofthe military posture, including: (a) the role of parliament and ministries;(b) public access to information related to the armed forces.

item 4 Constitutionally established authorities and procedures to ensure effectivedemocratic political control of: (a) armed forces; (b) paramilitary forces;(c) internal security forces; (d) intelligence services; (e) police.

item 5 Roles and missions of the following types of forces as well as controlsto ensure that they act solely within the constitutional framework: (a)military; (b) paramilitary; (c) security forces.

item 6 Procedures for the recruitment or call-up of personnel for service in the:(a) military; (b) paramilitary; (c) security forces.

item 7 Where applicable, legislation or other relevant documents governingexemptions from, or alternatives to compulsory military service.

item 9 Legal and administrative procedures protecting the rights of all forcespersonnel.

Items 2, 4 and 5 of the 1998 Questionnaire refer to provisions of the Coderelated to the primacy of constitutional civilian power over military power, beingthe first pillar of the OSCE regime on democratic control of armed forcesestablished by the Code.65

65 See for instance: First category of the ‘fundamentals of the democratic control and useof armed forces’ of the Code, identified in the Introduction to the present book, p. 11.See also under chapter 1.5.2.

212 PART II

item 2 § 13 “Each participating state will determine its military capabilities onthe basis of national democratic procedures, bearing in mind thelegitimate security concerns of other states as well as the need tocontribute to international security and stability. No participatingstate will attempt to impose military domination over any otherparticipating state.”

§ 22 “Each participating state will provide for its legislative approvalof defence expenditures. Each participating state will, with dueregard to national security requirements, exercise restraint in itsmilitary expenditures and provide for transparency and publicaccess to information related to the armed forces.”

item 4 § 20 “The participating states consider the democratic political controlof military, paramilitary and internal security forces as well as ofintelligence services and the police to be an indispensable elementof stability and security. They will further the integration of theirarmed forces with civil society as an important expression ofdemocracy.”

§ 21 “Each participating state will at all times provide for and maintaineffective guidance to and control of its military, paramilitary andsecurity forces by constitutionally established authorities vestedwith democratic legitimacy. Each participating state will providecontrols to ensure that such authorities fulfil their constitutionaland legal responsibilities. They will clearly define the roles andmissions of such forces and their obligation to act solely withinthe constitutional framework.”

item 5 § 21 See under item 4.

Through item 2 the participating states exchange information, inter alia,on their national planning and decision-making processes for the determinationof the military posture. Through item 2a, they are requested to report in parti-cular on the roles played by parliaments and ministries. In addition, under item2b, they report on the issue of public access to information related to the armedforces.

Item 2 refers to paragraphs 13 and 22 of the Code, which are closelyinterrelated. Paragraph 13 is the only non-Section VII part of the Code referredto by the Questionnaire. It stipulates, inter alia, that each participating stateshall determine its military capabilities on the basis of national democraticprocedures. It therefore implicitly provides for the parliamentary control ofthe armed forces. This principle is expressly dealt with by paragraph 22, pro-


viding for the legislative approval of defence expenditures. Furthermore, withthe provision for transparency and public access to information, paragraph 22provides also for the public control of the armed forces.

Paragraph 22 of the Code requires the participating states to exerciserestraint in military expenditure. It represents a second link between paragraphs13 and 22. This may also be seen in the framework of the principle of defencesufficiency, which is laid down in paragraphs 10-12 of the Code. The stipulation‘… with due regard to national security requirements’ corresponds to the term‘legitimate security needs/concerns’ used in paragraphs 10-13 of the Code.

There may be less overlap and repetition, if for instance item 2 dealsconsequently with the issue of the decision-making process in defence planning(and budgeting), while the focus would not be put on transparency rather thanon the military posture.

Item 4 refers to paragraphs 20 and 21 of the Code, providing (additional)elements of effective democratic political control of the armed forces. Moreover,paragraph 20 presents a broader concept of armed forces, and therefore laysthe ground for the concept of the democratic oversight of the security sector.66

Much of the overlap and duplication of information within items 2 and 4 wouldbe avoided if item 4 expressly targeted the competences and responsibilitiesof constitutionally established authorities, while item 2 insisted on the decision-making process.

From the perspective of the regime on democratic control of armed forces,items 2 and 4 are nevertheless of particular relevance. Politically, one has onlyto look at the above- mentioned Partnership for Peace framework. Its relevantDocuments distinguish between transparency in defence planning and budgetingon the one hand and the democratic control of armed forces on the other hand.This is apparently – though not expressly – reflected by the same fundamentalsub-division into items 2 and 4 of the Questionnaire.

There are other overlaps between items 4 and 5 of the Questionnaire,because they both refer to paragraph 21 of the Code. The latter, on the onehand, stipulates that the participating states shall at all times provide for andmaintain effective guidance and control. Moreover, the participating states shall

66 According to Victor-Yves Ghebali, paragraph 20 of the Code also provides two rationalesof the principle of democratic political control of armed forces. First, the principle isconsidered an ‘indispensable element of stability and security’. Second, the furtheringof the integration of armed forces with civil society is considered by the participatingstates an ‘important expression of democracy’. See: Ghebali, Part I of the present book,p. 63.

214 PART II

provide controls to ensure that authorities fulfil their constitutional and legalresponsibilities. On the other hand, paragraph 21 underscores that the participat-ing states shall clearly define the roles and missions of forces and their obliga-tion to act solely within the constitutional framework. While the first part ofthe paragraph is one of the topics addressed by item 4 of the Questionnaire,the second part is the subject of item 5.

Items 6, 7 and 9 of the 1998 Questionnaire refer to provisions of the Coderelated to the respect of the human rights and fundamental freedoms of thearmed forces personnel, being the third pillar of the OSCE regime of democraticcontrol of armed forces established by the Code:67

item 6 § 27 “Each participating state will ensure that the recruitment or call-upof personnel for service in its military, paramilitary and securityforces is consistent with its obligations and commitments inrespect of human rights and fundamental freedoms.”

item 7 § 28 “The participating states will reflect in their laws or other relevantdocuments the rights and duties of armed forces personnel. Theywill consider introducing exemptions from or alternatives tomilitary service.”

item 9 § 33 “Each participating state will provide appropriate legal and admin-istrative procedures to protect the rights of all its forces per-sonnel.”

Next to these two thematic areas, there are also a third and a fourth topicreflected in the Questionnaire, which permits its breaking down into fourthematic assessment areas. The corresponding evaluation outline will beelaborated in the following sub-chapter.

1.4.2 Outline for the Evaluation of the Information Exchange

According to Victor-Yves Ghebali, the provisions under Sections VII andVIII of the Code of Conduct establish a regime for the democratic control anduse of armed forces. This regime can be presented in two different ways. The

67 See for instance: Third category of the ‘fundamentals of the democratic control anduse of armed forces’ of the Code, identified in the Introduction to this book, p. 11.


first way is to consider that the Code represents a global answer to the followingcomprehensive question: who must control what, how and why:68

Who What How Why

Constitutionallyestablished author-ities vested withdemocratic legit-imacy (§ 21).Specific role of thelegislative branch:(§ 22).

Military forces,paramilitary forces,internal securityforces, intelligenceservices and thepolice (§ 20).First three cat-egories only(§§ 21, 27, 32).Paramilitary forces(§ 26).Irregular forces(§ 25).“Armed forces”(§§ 22, 23, 28, 30,31, 34, 35, 36, 37).

Primacy of con-stitutional civilianpower over mili-tary power (§§ 21,22, 23, 24, 25, 26).Subjection ofarmed forces tointernationalhumanitarian law(§§ 29, 30, 31, 34,35).Respect of thehuman rights ofservicemen (§§ 23,27, 28, 32, 33).Commensurabilityof the domesticuse of force withthe needs for en-forcement (§ 36)and prohibition ofa use of forceaimed at restrictingthe peaceful andlawful exercise ofhuman rights or atdepriving peopleof their individualor collectiveidentity (§ 37).

”An indispensableelement of stabil-ity and security”,as well as “animportant ex-pression of demo-cracy” (§ 20).

68 See also: Introduction, p. 10.

216 PART II

The second way is to stress that the Code’s regime rests upon a numberof basic pillars – namely:69 (1) Primacy of democratic constitutional civilianpower over military power; (2) Subjection of armed forces to the norms andprescriptions of International Humanitarian Law; (3) Respect of the humanrights and fundamental freedoms of the armed forces personnel; (4) Regulationof the use of armed forces for internal security purposes.

The previous chapter showed already that the overlapping areas of items2, 4, 5 and 6, 7, 9 reflect the first and the third pillar of the OSCE regime onDCAF. Another intra-state element (of Section VII) is reflected in item 8 ofthe Questionnaire. It refers to the Code’s provisions related to the subjectionof armed forces to the norms and prescriptions of international humanitarianlaw (IHL), being the second pillar of the OSCE regime on democratic controlof armed forces established by the Code:70

item 8 Instruction on international humanitarian law and other internationalrules, conventions and commitments governing armed conflict includedin military training programmes and regulations.

§ 29 “The participating states will make widely available in their respectivecountries the international humanitarian law of war. They will reflect, inaccordance with national practice, their commitments in this field in theirmilitary training programmes and regulations.”

§ 30 “Each participating state will instruct its armed forces personnel in inter-national humanitarian law, rules, conventions and commitments govern-ing armed conflict and will ensure that such personnel are aware thatthey are individually accountable under national and international law fortheir actions.”

As item 8 deals with IHL, it indirectly relates also to the democratic useof armed forces, as provided by Section VIII of the Code. However, item 8contains only cross-references to relevant paragraphs under Section VII of theCode. That is why it makes sense to evaluate it within the intra-state aspectsof the Questionnaire.

For the evaluation of the intra-state aspects the basic framework thereforefollows the (four) pillars of the OSCE regime on the democratic control of

69 Introduction, pp. 11-12.70 See for instance: Second category of the ‘fundamentals of the democratic control and

use of armed forces’ of the Code, identified in the Introduction, p. 11.


armed forces (DCAF) established by Sections VII and VIII of the Code asidentified by Victor-Yves Ghebali:71

DCAF- Pillar 1 Primacy of democratic constitutional civilian power over mili-tary power.

DCAF- Pillar 2 Subjection of armed forces to the norms and prescriptions ofInternational Humanitarian Law.

DCAF- Pillar 3 Respect of the human rights and fundamental freedoms of thearmed forces personnel.

DCAF- Pillar 4 Regulation of the use of armed forces for internal security pur-poses.

The Questionnaire covers Pillars 1-3. The DCAF-Pillar 4 on the regulationof the use of armed forces for internal security purposes, called also the prin-ciple of the ‘Democratic Use of Armed Forces’ and addressed in Section VIIIof the Code, is not reflected in the Questionnaire. Accordingly, the latter doesnot request information on democratic control mechanisms in the event ofinternal security missions. The items of the Questionnaire dealing with demo-cratic control only address provisions under Section VII of the Code on the‘Democratic Control of Armed Forces’.

Finally, the remaining items 1 and 3 of the Questionnaire refer to inter-stateprovisions of the Code of Conduct. Item 1 relates to the combating of terrorismand item 3 to the stationing of armed forces on foreign territory:

Item 1 Appropriate measures to prevent and combat terrorism, in particularparticipation in international agreements to that end.

§ 6 “The participating states will not support terrorist acts in any way andwill take appropriate measures to prevent and combat terrorism in all itsforms. They will cooperate fully in combating the threat of terroristactivities through implementation of international instruments and com-mitments they agree upon in this respect. They will, in particular, takesteps to fulfil the requirements of international agreements by which theyare bound to prosecute or extradite terrorists.”

71 Introduction, pp. 11-12.

218 PART II

Item 3 Stationing of armed forces on the territory of another participating statein accordance with their freely negotiated agreement as well as inaccordance with international law.

§ 14 “A participating state may station its armed forces on the territory ofanother participating state in accordance with their freely negotiatedagreement as well as in accordance with international law.”

The following table therefore establishes the thematic evaluation outline,which will be used in Section 2 of the present analysis:

1 DCAF-Pillar 1 Questionnaire: items 2, 4, 5

2 DCAF-Pillar 2 Questionnaire: item 8

3 DCAF-Pillar 3 Questionnaire: items 6, 7, 9

4 Inter-state Aspects Questionnaire: item 1, 3

2

THEMATIC ANALYSIS OF THE INFORMATION EXCHANGE

Section 2 evaluates the information exchange in 1999-2002 on the Codeof Conduct on the basis of the thematic assessment framework elaborated inPart I. The evaluation therefore contains four sections, proceeding with threesections on the intra-state elements (reflecting three pillars of the OSCE regimeon the democratic control of armed forces) followed by one section on the inter-state elements of the Questionnaire. The following table recalls the evaluationoutline proposed above:72

Section 1 DCAF-Pillar 1 Questionnaire: items 2, 4, 5

Section 2 DCAF-Pillar 2 Questionnaire: item 8

Section 3 DCAF-Pillar 3 Questionnaire: items 6, 7, 9

Section 4 Inter-state Aspects Questionnaire: item 1, 3

Within the first three sections, reflecting the Code’s provisions on thedemocratic control of armed forces (DCAF) and covering alone 80 % of theQuestionnaire, the first pillar on the primacy of democratic constitutionalcivilian power over military power represents the bulk of the informationexchange.73 Accordingly, it constitutes also a major part of the present evalu-

72 See also chapter 1.4.2.73 This is particularly true for the information exchange period 1999-2001. In 2002,

as a direct consequence of the terrorist attacks of September 11, the participatingstates have generally enhanced their information exchanges on terrorism (item 1),which is one of the two inter-state aspects of the Code reflected in the Questionnaire.



220 PART II

ation. The second pillar on the subjection of the armed forces to the normsand prescriptions of international humanitarian law (reflected only by item8 of the Questionnaire) constitutes a less extensive part of the evaluation. Thethird pillar on the respect of the human rights and fundamental freedoms ofthe armed forces personnel will represent another major part of this evaluation.The final section on the inter-state elements evaluates the information exchangedon the combating of terrorism and the stationing of armed forces on foreignterritory.

2.1 Primacy of Democratic Constitutional Civilian Power over MilitaryPower

The first pillar of the OSCE regime on the DCAF is provided by paragraphs21, 22, 23, 24, 25, 26 of the Code of Conduct74 and reflected in items 2, 4and 5 of the 1998 Questionnaire:

item 2 National planning and decision-making process for the determination ofthe military posture, including: (a) the role of parliament and ministries;(b) public access to information related to the armed forces.

item 4 Constitutionally established authorities and procedures to ensure effectivedemocratic political control of: (a) armed forces; (b) paramilitary forces;(c) internal security forces; (d) intelligence services; (e) police.

item 5 Roles and missions of the following types of forces as well as controlsto ensure that they act solely within the constitutional framework: (a)military; (b) paramilitary; (d) security forces.

Quantitatively, the reporting of the participating states under these threeitems represents the bulk of information submitted between 1999-2002. How-ever, Part I has shown that there are thematic overlaps between the threeitems.75 Moreover, the three items do not refer to exactly the above-mentionedparagraphs. On the one hand, they do not refer to paragraphs 24, 25 and 26of the Code. On the other hand, item 2 also refers to paragraph 13, and item4 also to paragraph 20 of the Code:

74 See also chapter 1.4.2.75 See also chapter 1.4.1.

2 – THEMATIC ANALYSIS OF THE INFORMATION EXCHANGE 221

item 2 § 13 “Each participating state will determine its military capabilities onthe basis of national democratic procedures, bearing in mind thelegitimate security concerns of other states as well as the need tocontribute to international security and stability. No participatingstate will attempt to impose military domination over any otherparticipating state.”

§ 22 “Each participating state will provide for its legislative approval ofdefence expenditures. Each participating state will, with due regardto national security requirements, exercise restraint in its militaryexpenditures and provide for transparency and public access toinformation related to the armed forces.”

item 4 § 20 “The participating states consider the democratic political controlof military, paramilitary and internal security forces as well as ofintelligence services and the police to be an indispensable elementof stability and security. They will further the integration of theirarmed forces with civil society as an important expression ofdemocracy.”

§ 21 “Each participating state will at all times provide for and maintaineffective guidance to and control of its military, paramilitary andsecurity forces by constitutionally established authorities vestedwith democratic legitimacy. Each participating state will providecontrols to ensure that such authorities fulfil their constitutionaland legal responsibilities. They will clearly define the roles andmissions of such forces and their obligation to act solely within theconstitutional framework.”

item 5 § 21 See under item 4.

Nevertheless, for the evaluation of the 1st DCAF-Pillar, it may be usefulto split item 2 into two separate aspects and to evaluate item 2b on the publicaccess to information separately. The evaluation therefore follows four themes:National Planning and Decision-Making Process for the Determination of theMilitary Posture, including the Roles of Parliament and Ministries (item 2/2a);Public Access to Information Related to the Armed Forces (item 2b); Constitu-tionally established authorities and procedures to ensure the democratic politicalcontrol of the security sector (item 4); Roles and Missions of Military andSecurity Forces (item 5).

222 PART II

2.1.1 National Planning and Decision-Making Process for the Deter-mination of the Military Posture

The reporting under item 2 of the 1998 Questionnaire has proven to beparticularly complex.76 Moreover, the provision of clear and target-orientedreporting is not evident, because unlike the other items of the Questionnaire,item 2 is not drafted in accordance with those provisions and paragraphs ofthe Code referred to by the Questionnaire.77 For instance, the Code neitherrefers to concepts like defence planning or military posture, nor uses notionslike parliament and ministries (item 2a). As the Questionnaire does not containexplanations on these concepts, the participating states have submitted a broadvariety of information under item 2. Due to this variety of information, it isdifficult to clearly identify major trends. However, five trends may be dis-tinguished:

First, given the specific request under item 2a to submit information on‘Parliament and Ministries’, many of the participating states have submittedgeneral information on the relation between the legislative and executivebranches of government in the overall decision-making process.

Second, some of the established democracies have further emphasised theleading role and authority exercised by the national assembly, including thecomplementary role played by the broader public with regard to the democraticoversight of the armed forces.78

Third, other participating states referred also to the important role playedby civilian senior officials in their defence ministries and civilian expertise indefence matters in order to implement and uphold effective civilian control ofthe armed forces.79

Fourth, NATO members and associated counties tend to form a relativelyhomogenous group. Within this group, NATO members that recently trans-

76 The exception is item 2b, requesting information on access to information relatedto the armed forces, to which the participating states globally reported in a muchclearer way. It therefore constitutes a separate aspect and will be evaluated in thenext chapter (2.1.2).

77 See also chapter 1.1.1 and chapter 1.4.1.78 The Code’s regime on the democratic control of armed forces concentrates most

of its provisions on the executive parts of government. Only paragraph 22 relatesto the principle of parliamentary oversight over the armed forces.

79 Respective reports have particularly emphasised the role played by the civiliandefence minister, who is himself accountable to parliament on behalf of the govern-ment.


formed their conscription armed forces into fully professional ones reportedon the relevance of the NATO planning process for domestic decision-making.On the other hand, the national reports submitted by the new NATO members,as well as countries from Central and Eastern Europe wishing to becomemembers, sometimes tend to copy ‘western-style’ patterns of civil-militaryrelations. However, the reports of these countries were sometimes even morecomprehensive and detailed than those of the established democracies.

Fifth, CIS countries tend to form another relatively homogenous group. Thedefence decision-making in these countries tends to be dominated by pres-idential-executive systems.

After all, the reporting under item 2 showed sometimes considerable overlapwith item 4, in particular with regard to the description of competencies andresponsibilities of the constitutionally established authorities.

2.1.1.1 General Information on the Relation between the Executive andLegislative Branches of government

It is not surprising that item 2a expressly requests information on nationalparliaments and ministries. These authorities usually play an instrumental rolewithin a democratic decision-making process. The national assembly exercisesparliamentary oversight over the government, and the civilian minister ofdefence ensures civil guidance and management of the armed forces. Moreover,while both institutions guarantee civil supremacy over the military, a cleardefinition of the competencies and responsibilities of all constitutionally estab-lished authorities enhances transparency of accountability mechanisms withinoverall defence decision-making and the formulation of defence policy.80 How-ever, the wording of item 2 provides the participating states with the opportunityto report separately on the planning and decision-making process on the onehand, and the specific roles played by parliaments and ministries on the otherhand.

There are different national approaches to defence planning decision-makingand the determination of the military posture. In many of the participating states,the control authority of parliament appears to be relatively weak in comparisonwith that of the government. However, in some cases, the role of government

80 That is also one of the reasons why the participating states’ reporting under items2 and 4 has shown many overlaps.

224 PART II

in turn tends to be clearly less powerful than that of the president and its office.Furthermore, in these cases the authority of the chief of general staff tends alsoto be relatively strong compared with the responsibilities and competenciesattributed to the civilian defence minister. This is particularly relevant in caseswhere the organisational structure of the general staff in relation to the ministryof defence is not clearly defined and where the chief of general staff apparentlyhas separate and direct lines of accountability towards the head of state andtherefore a considerable degree of independence from the defence minister.Nevertheless, some of the established democracies have underscored that thegeneral staff is an integral part of the defence ministry and state administrationand the chief of general staff clearly subordinated and accountable to the civilianminister of defence.

In most of the established democracies, parliament and the broader publicplay a relatively active role vis-à-vis the government (see chapter 2.1.1.2).Compared to this, emerging democracies tend to emphasise the authoritiesexercised by the executive, especially with regard to the head of state. However,there are different approaches amongst the emerging democracies in Centraland Eastern Europe. Not only do they differ with respect to the role playedby the head of state (prime minister or president), but also the cabinet, as wellas the national Security Council and general staff.

While many of the participating states have emphasised the role played bygovernmental advisory bodies, including national Security Councils, there aredifferent national approaches to the concept of Checks and Balances. Someof the participating states tend to a presidential-executive system of decision-making (see chapter 2.1.1.5); others have established decision-making processesdominated by a parliamentary-legislative system.

After all, few participating states have described the relationship betweenthe military posture and the drafting of strategic documents such as militarydoctrines, defence guidelines, as well security policy in general.81

81 One country for instance mentioned that the military posture is a part of the nationalsecurity policy. Another country referred in this context to the inter-state provisionsunder paragraph 13 related to the principle of non-use of force and the prohibitionof military domination.


2.1.1.2 Roles of Parliament and the Broader Public

Most of the participating states reported on the key role played by parliamentto approve the national defence budget. Usually, the budget is adopted everyyear, includes the numerical strength and organisational structure of the armedforces, and is an integral part of the state budget.82 However, the participatingstates seem to have different experiences and national traditions with regardto the special roles played by standing/ permanent and ad hoc committees andcommissions dealing with defence affairs. For instance, not all of the participat-ing states have specialised committees or commissions for security and defencematters. Many of the participating states have reported that budget proposalssubmitted by the government are first discussed in competent parliamentarycommittees/commissions of both chambers before they are passed to the plenary.In some cases, the two parliamentary chambers vote separately on proposalsby the government, including issues related to military procurement and con-struction programmes.

Some of the established democracies tended to emphasise certain principlesand rules of parliamentary-democratic decision-making.83 Important politicaldecision-making processes must be based on the principle of democratic repres-entation, including an appropriate participation of all major political partiesin parliament.84 While regular free elections are held, the elected parliamentappoints the government and controls its activities according to the Constitution,which provides for parliamentary democracy. In parliamentary democracies,the commander of the armed forces is usually appointed by parliament.

Some of the established democracies also underscored that defence agree-ments are preceded by comprehensive reports analysing the security situationand holding specific recommendations. These reports are elaborated by

82 For instance, one report mentioned that so-called ‘Federal Finance Acts’ are alwayspublic and lay down, for a respective year, the state financial resources, includingthose provided for national defence.

83 Parliamentary-democratic systems appear to be particularly established in the‘Northern’ trans-Atlantic region. Even some of the consolidating democracies ofthe Central European tend to such a political system.

84 “The country’s constitution is based on the principle of popular sovereignty, repres-entative democracy and parliamentarism. Special parliamentary commissions withrepresentatives from major political parties, and led by a member of parliament,have generally been convened to assist the governmental process in preparingdefence resolutions...” Some countries further underlined that the yearly politicaldefence agreements must be approved by parties holding a majority in parliament.

226 PART II

ministerial commissions appointed by the minister and consisting of parliament-arians, independent experts and representatives from the defence sector. As thesereports are public documents they give rise to public debate. Effective publicoversight over the armed forces85 is additionally ensured through the principleof making public the defence budget, being a public document and thereforesubject to open debate.

One established democracy reported that the national Report on SecurityPolicy86 provides a general outline for the military posture. Based on thisreport, which must be acknowledged by parliament and the National Council,new Defence Guidelines are elaborated providing the framework for forceplanning and implementation by the Federal Defence Department. The imple-mentation of the defence guidelines also requires an adaptation of the existingLaw on the Armed Forces. The approved Law may be subject to facultativereferendum and subsequent popular vote. Moreover, while any governmentalproposal can be subject to popular vote for constitutional amendment, amend-ments of major laws, including those on the military posture, and which areadopted by parliament, are subject to obligatory referendum.87

While parliament sets the framework for the government’s decisions onall major defence matters, including the entire organisation of national defence,parliament actually plays a passive role in defence decision-making. The formu-lation and implementation of defence policy is the task of the ministry ofdefence, playing the active role in defence planning and determination of the

85 The issue of public access to information related to the armed forces is subject toitem 2b of the Questionnaire; see chapter 2.1.2.

86 Covering the whole spectrum of national security policy and considering risks andopportunities, interests and objectives, strategy and instruments of security policyas well as resources and strategic leadership.

87 The same country also mentioned that the federal government (constituted as thefederal council) has a purely representative function. Moreover, due to its consensuscharacter, important decisions concerning the military posture may not be takenby one single federal department, but by the federal council as a whole. Beside thedefence department, other departments are regularly and closely involved in thedefinition of security policy and the military posture, especially the Foreign Affairsand Justice Departments. The heads of these three Departments constitute theSecurity Policy Committee of the government. The government has recently estab-lished a special Security Steering Group, which is subordinated to the Security PolicyCommittee. Finally, the fact that local government is often based on a militia system,and that politicians and representatives of the public administration are involvedin important civil or military organisations and associations, provides for a certaindegree of additional external control.


military posture. However, in some countries, parliament has broad experiencealso in playing a pro-active role in defence decision-making. Beside the parlia-ment’s competence to draft and amend legislation, it may table motions, setup special commissions of inquiry, hold special hearings and ask to visit armedforces units, command posts and headquarters, etc.

2.1.1.3 The Ministry of Defence and Civilian Leadership

Many participating states emphasised the principle of civilian control, aseffective civilian control of the military requires an appropriate amount ofexperienced civil servants in leadership positions in the defence ministry. Oneestablished democracy noted that, compared with the more passive role playedby parliament, the ‘bulk of the task’ of defence planning and decision-makingrests within the government, the minister of defence and the cabinet. In thecase of the latter, it plays its role through regular discussions, special cabinetcommittees and meetings during times of crisis.88

Another participating state underscored the leadership role played by thegovernment and minister of defence in determining the necessary political andplanning requirements through relevant documents. These documents, like theSecurity and Defence White Paper, Defence Policy Guidelines and ConceptualGuidelines, are the binding basis for the armed forces.89 In turn, the imple-mentation of defence and security policy by the minister of defence must beapproved by parliament. The minister therefore reports and accounts to parlia-ment on any major operational and technical planning matter.

A particular role is played by National Security Councils,90 which arespecial governmental advisory and defence decision-making bodies. Functionsand responsibilities of these bodies vary. In some countries, National Security

88 The relevant national report noted: “The ministry of defence is a comparativelysmall body … a majority of the civil servants have civilian backgrounds, althougha number of military officers serve at the Ministry … the minister of defence hasbeen a civilian politician since the 1920s”.

89 Defence White Papers are regularly produced, for instance every five to 10 years,and contain broad descriptions of defence policy determining the military posture.They are usually directed by the government and prepared by the ministry ofdefence, under the responsibility and direction of the minister of defence, who ishimself under the supervision of the cabinet.

90 In one country, it is called the ‘Government Council for Foreign and DefenceAffairs’ (GCFDA).

228 PART II

Councils are responsible for the formulation of defence policy and approve thelong-term defence capabilities (including major procurement programmes). Theyalso evaluate the general security environment. The Council is chaired by thePrime Minister (or President), and includes the Ministers of Foreign Affairs,National Defence, National Economy, Chief of General Staff, and other minis-ters and defence experts as the case may require. On the basis of the decisionstaken by the National Security Council, the ministry of defence formulates andimplements the national defence strategy based on the defence policy.91 Othercountries emphasised that National Security Councils must be heard in allfundamental matters relating to foreign, security and defence policy.

Civil-military decision-making within the defence sector is also reflectedby personnel selection policies. One country underscored that while the ArmedForces constitute one single public authority under the government, the latterhas the power to designate the highest-ranking military officers. In certainparticipating states, these officials are usually appointed on merit and remainon duty when there is a shift of government.

After all, many national reports have underlined the overall administrativeand management role played by the civilian minister of defence. On the admin-istrative level, the minister interacts with parliament, government, and the chiefof general staff, while the ministry of defence – in some cases acting as a statedepartment – supports the minister who is accountable to parliament on behalfof the government. The ministry’s role is usually defined as the political secret-ariat of the minister. The minister is responsible for giving military advice tothe government, formulating new policy and providing overall managementdirectives on a strategic level to the chief of general staff. The general staffexercises the overall military strategic and operational responsibility, based onministry of defence directives.

2.1.1.4 NATO Enlargement and National Defence Decision-Making

The information exchange on the Code of Conduct also reflects the Euro-Atlantic integration process. Some of the NATO members noted that national

91 Federal states also mentioned the existence of national Supreme Defence Councilscomposed of the Federal President and the Presidents of the constituent Republics.The Federal President commands the federal armed forces in accordance with thedecisions of the Council, while the Defence Law provides for the competenciesof the Council.


defence planning is consistent with the foreign and defence policy, developedby the government in compliance with international commitments and is subjectto close examination by parliament. They also referred to capability, sustain-ability and interoperability matters, stipulating that according to the missionsand roles of the armed forces, national defence has to be permanent, global,inter-ministerial, and covering military and non-military components of security.

NATO members, which have recently transited to full professional armiesreported on their efforts to enhance the coordination of the national and NATOplanning process in order to achieve a maximum of fine-tuning of the country’scontribution to the Alliance. Compared with the European Security and DefencePolicy, one country emphasised that NATO provides for the leading principlesof defence planning. The annual adjustment of the Long-Term Plan as wellas the activity plans and annual budget proposals are harmonised with theoutcome of the NATO planning cycle.

The determination of national defence planning priorities takes into accountconcepts, missions, tasks and assets of the armed forces. In order to improvecommon understanding on these issues, systems are developed for breakingdown defence activities into a number of planning units within the Services,as well as further subdivision into Basic Planning Units. An important featureof ‘Individual Defence Planning Priorities’ is the strategic orientation throughoutthe planning period. The relevant national report distinguishes between theStrategic Outlook (20 years), Long-term Planning (15 years), and Activity Planand Annual Budget Proposal (five years).

Finally, the strategic outlook is laid down in the Defence Strategic Plan,containing the fundamental choices and priorities with respect to missions andperformance of the armed forces in terms of both quality and quantity. TheDefence Strategic Plan builds upon and elaborates on major policy documentssuch as the Defence White Paper, being under regular review and dependingon relevant developments. The Activity Plan and Annual Budget Proposalpresent a more detailed picture of the first five years of the plan. A transcriptis sent each year to parliament, which approves the budget for the coming fiscalyear. Together with the planning unit approach, these so-called planningelements (strategic plan, long-term planning and activity and budget plans) formthe basis of the Individual Defence Plan Priorities. This Planning, Formulationand Integration Process (proposals prepared by the defence chief of generalstaff and submitted to the national minister of defence) may be characterisedas a Centrally Guided Planning Process, to be distinguished from ‘centralisedplanning’.

230 PART II

New NATO members generally underscored that Defence was a ‘nationalpriority’, and that the principle task of the defence system was to efficientlyand effectively counter all challenges and external threats. ‘Political and StrategicDefence Directives’ lay down the rules governing the functioning of the entiresystem of national defence. They are regularly reviewed with regard to thesecurity environments and national defence capabilities.

NATO candidate countries reported that their ministries of defence weretaking measures towards developing and improving the defence system andreadiness. One country mentioned that the defence minister approved ‘NationalPlanning Directives of Defence’, which include training and modernizationprogrammes for the armed forces. Others referred to the adoption of new ‘Lawson the Basics of National Security’ for developing long-term planning and toestablish an enhanced national security policy. Another national report notedthat the Bills related to defence reform programmes were currently deliberatedin parliament. NATO and EU candidate countries have reported on the needto develop appropriate defence capabilities and that they are committed to movetowards European and North-Atlantic standards.92 However, some of the reportsindicated that the adoption of Western standards must be implemented underthe conditions of limited budget capabilities. Defence reform is perceived asan important but expensive undertaking.93

Some EU and NATO candidate countries reported that specific defenceplanning methodologies were adopted. The planning and decision-makingprocess involves the president, government, both houses of parliament and itscommittees, the ministries of defence, finance and commerce and other nationalinstitutions. Some of these countries reported that planning/decision-makingwas coordinated on inter-agency and -departmental levels. Others emphasisedthat their defence budgets constituted an integral segment of the national budgetsand that the national bodies involved in the planning and decision-makingprocesses were responsible for assuring two basic concerns: consistency with

92 The relevant report notes: “The goal of the national security policy is … to developand strengthen democracy … the national security and defence system shall bedeveloped as part of the common European security and transatlantic defence system.The strengthening of national security shall be the main ultimate objective ofdomestic and foreign policy.”

93 The relevant report states: “This is particularly significant as the armed forces arecurrently adopting Western standards, while continuously providing sound defencefor the country and its citizens … although development and modernisation of thearmed forces is focused on achieving Western standards, limited budget capabilities,economic stability and the wellbeing of the citizens are of paramount importance.”


budget capabilities; and requirements for maintaining and developing the armedforces.

In general, the participating states have submitted factual information onthe competencies and responsibilities of relevant national authorities. This kindof information was partly duplicated within the participating states reportingunder item 4 of the 1998 Questionnaire. One NATO candidate country provideddetailed information on the re-distribution of tasks and responsibilities, powersand authority to the parliament, president, government, minister of defence andthe general staff; See: Annex 1.94

The illustrative model report under Annex 1 emphasised that ‘no govern-mental administration body has exclusive responsibility for the developmentof defence regulations, documents and plans’. An analysis of the ‘verbs’ usedin the report to connect the responsibilities with the authorities shows that thereare more active than passive tasks and responsibilities:

Active Passive

Parliament Decides Adopts, Passes, Discusses,Surveys

President Defines, Develops Approves, Passes

Government Proposes Delivers, Passes

Minister of Defence Establishes, Defines, Devel-ops, Proposes, Coordinates,Implements

Approves

General Staff Develops, Proposes, Imple-ments, Cooperates

The above table shall highlight those elements that give some more insightinto the decision-making process with regard to planning and the determinationof the military posture. For instance, the minister of defence and the generalstaff clearly play a more active role. The next table enlarges the above one bythe aspect of what is decided and assesses the more comprehensive question:

94 The information is compiled as an illustrative national reply and annexed to thisanalysis. The table lists the competencies and responsibilities of the five relevantnational authorities by exposing the verbs and thus highlighting procedural aspectsof the decision-making process and relationship between the national authorities.

232 PART II

who is responsible for what and on the basis of what competence (the latterindicated by the ‘verbs’):

Parliament President Government Minister ofDefence

General Staff

Defence System develops

DefencePlanning

implements

DefenceStrategy

passes approves proposes (toparliament)

develops cooperates (onissues related todefence strategy)

Defence Budget decides proposes (toparliament)

cooperates (onissues related toforce planning,programmingand developmenton the basis ofthe allocatedBudget)

Long-term Plan adopts proposes (toparliament)

develops

Annual Report discusses,adopts

delivers develops

Defence Plan surveys approves passes proposes

Defence Plans coordinates

MilitaryStrategy

passes approves develops

Size, StructureandMobilisation

passes develops

Military Territ-orial Division

passes develops

Structure,Command,Units and Insti-tutions

approves establishes proposes, imple-ments

DeploymentPlan

develops develops


Parliament President Government Minister ofDefence

General Staff

Basis ofcommand andcontrol

defines

DefenceGuidelines

passes

Development,equipment,modernisationof the armedforces

proposes

Defence Policy defines,develops,coordinates,implements

This shows that the five governmental and administrative bodies take part– more or less actively – on different levels of the planning process. However,three basic elements may be distinguished: defence policy, defence strategy,and military strategy.95

The analysed national report is representative for many other nationalreports. Many of the participating states have listed the competences andresponsibilities of individual authorities without providing more insight intothose mechanisms and practises determining the decision-making process assuch.

95 In the case of defence policy, the report mentions that it is defined, developed,coordinated and implemented by the defence minister, while there is no particularinformation with regard to the possible roles played by other constitutional author-ities. Contrary to this, defence strategy is developed by the defence minister incooperation with the General Staff, while it is approved by the President and‘passed’ by parliament. Finally, military strategy is developed by the General Staff,approved by the defence minister, and ‘passed’ by the President.

234 PART II

2.1.1.5 Systems of Presidential-Executive Decision-Making in Central andEastern Europe

While parliamentary control and oversight appears to be generally weakin Central and Eastern Europe, the more ‘Eastern’ the focus, more relevantis the influence of the head of state. While in the countries of East-CentralEurope the dominant role is sometimes played by the prime minister, in thecountries of the Commonwealth of Independent states (CIS) the President clearlyoccupies the predominant role in the overall decision-making process.

CIS countries reported on the participation of both the executive and legis-lative branches of government, as well as the local bodies of self-governmentin the process of the elaboration, determination and adoption of the defencepolicy. One country reported on the cooperation of the armed forces with lawenforcement bodies and other executive institutions, the Defence Ministry worksout the general guidelines of the defence policy, as well as the so-called ‘Policyof Military Restoration and State Defence’. The strategic document is thensubmitted for consideration to the National Security Council, which is thepresidential consultative body on security and defence issues. After a decisionis taken by the president, the drafts of the ‘Law on the definition of the generalguidelines of the defence policy’ are submitted for consideration to the parlia-ment and coordinated by the defence committee. The report refers to the ‘co-ordination’ between the executive and legislative bodies and states that the draftsare then submitted for consideration to the parliamentary plenary session, whereafter the final considerations and discussions, the Law is adopted.

Another CIS country referred to the participation of different bodies of thesecurity sector in the elaboration of the military budget, which is determinedwithin the limits and framework of the state budget. Within their competencies,the following security bodies are involved in the formation of the budgetproposal: the ministry of defence; internal forces within the budget of theMinistry of Interior; the State Department of State Border Guards; specialService of State Protection; the Ministry of State Security; State Departmentof Intelligence. These institutions (collectively) submit the draft budget to thegovernment and the National Security Council. After the agreement of theexecutive authorities, the president shall submit the Defence Budget, as anintegral part of the state budget, to the parliament. Within the framework ofparliament, the draft budget is assigned to the ‘relevant parliamentary Commit-tee’ that ‘thoroughly perfects the budget’ on the basis of general defence policyguidelines and ‘appropriate priorities’. Finally, the defence budget, as a part


of the state budget, is submitted to the parliamentary plenary session, whichafter final consideration and discussion adopts it.

Another CIS country reported that the defence policy is in compliance withthe national strategy for the ‘Long-term Re-establishment and Development ofthe Armed Forces, other Troops and Paramilitary Forces’. The presidentexecutes the so-called ‘ensuring of the military security’ of the country togetherwith the government and other constitutional and ‘legal state organs’, chargedwith the implementation of the ‘ensuring of military security’. The followinggeneral measures aim at enhancing defence: mobilisation and combat capabil-ities and readiness of the armed forces, as well as other troops and paramilitaryforces; preparation of the economy, territory and the population for the pro-tection and defence of the country.

Many of the CIS countries submitted comparative information on thecompetencies and responsibilities of constitutional authorities related to the rolesplayed by the president, the Security Council, parliament, cabinet, the ministerof defence, and the general staff. This information is summarised in anothertable under Annex 2 of Part II of the present book.

2.1.2 Public Access to Information Related to the Armed Forces

The issue of public access to information related to the armed forces isreflected in Item 2b of the 1998 Questionnaire. Compared with the politicalcomplexity of item 2a and the sometimes confusing information submitted, theparticipating states have exchanged much clearer and particularly more technicalinformation under item 2b. The main difference between established andemerging democracies was merely the scope of information policies and tech-nologies applied.

The participating states reported on a broad variety of defence informationpolicies managed by the ministry of defence, by taking into account both publicand restricted access to information. Some of the reports have also made aconnection with defence planning and the principle of the publication of thedefence budget, while others included this topic under item 2a.

The evaluation therefore follows three major topics: transparency and thepublication of the defence budget; special legislation related to the public andrestricted access to information; defence ministerial information policies.

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2.1.2.1 Transparency and Publicity of the Defence Budget

Some countries underscored that like all actions performed by the publicadministration, all activities performed by the defence sector were subject tothe principle of transparency. One country emphasised that the main task ofgovernment public relations work was to promote commitments to the demo-cratic system of government and its underlying principles as set out by theConstitution with the ultimate aim of creating confidence in the national securitypolicy. Certain NATO and EU candidate states even made reference to thepublic character of certain international agreements in their countries96 as wellas the respective status of signature, ratification and implementation. Theytherefore provided additional information on international transparency indefence issues, as well as their contribution to regional confidence-building.97

While some of the countries had already reported on the principle ofpublication of the defence budget within item 2a on defence planning (seeabove), other participating states mentioned this issue under item 2b. One newNATO member reported that the national defence budget had recently beenpublished as an integrated part of the state budget. A NATO candidate countryreported that all documents of a strategic level like the National SecurityStrategy, Defence Policy, National Military Strategy, as well as the MembershipAction Plan were open to the public, stipulating in the same context that the‘media is more and more present in the military issues’. Another NATOcandidate country reported in this respect that a special ministerial body hadbeen formed, ensuring the working relations between the armed forces and bothparliament and the general public. The reports of EU and NATO candidatecountries often contain general statements and commitments with regard topublic access to defence and security information.98

96 Including OSCE Documents like the Code of Conduct, the Vienna Document onConfidence and Security-Building Measures, the CFE Treaty, the Open Skies Treaty,and the Chemical Weapons Convention, etc.

97 David Greenwood has highlighted that the domestic dimension of transparency aimsat increasing the effectiveness of democratic control of armed forces, while theinternational dimension of transparency contributes to confidence-building and theimprovement of (sub-)regional stability. David Greenwood: Transparency in defencebudgets and budgeting, Transparency in defence policy, military budgeting andprocurement. Edited by Todor Tagarev. Geneva Centre for the Democratic Controlof Armed Forces, George C. Marshall – Bulgaria, Sofia 2002, pp. 28-29.

98 “The country is doing its best to ensure the transparency of information related toits armed forces and public access to this information … a clear listing of defence


2.1.2.2 Special Legislation Related to Public and Restricted Access toInformation

The citizens’ right to receive information from the public administrationis constitutionally or legally provided in many of the participating states. Someof the participating states referred to special legislation regulating public accessto information. Typical legal provisions are:

‘Freedom of Information Acts’ or ‘Free Access to information Acts’99

‘Access to Information Acts’100

‘Acts on Open Administration’101

‘Privacy Acts’102

Most of the participating states also reported under item 2b on certainlimitations to the free public access to information related to security anddefence, since access to certain categories of information is restricted, and thatclassified information has a confidential character with regard to ‘vital interests’of national security. Such exceptions to the public access to information areregulated by law and subject to control of a specific parliamentary board, aswell as the judicial authorities. Certain NATO and EU candidate countries alsoreported on the limited access to information in the case of certain bilateraland international cooperation matters, and that special laws are adopted on statesecret and general defence matters. One CIS country reported that limits arealso with respect to general budgetary issues connected with the ministry ofdefence and general defence guidelines.

expenditures is provided as required by law …”; or: “The MoD has the Conceptof Media Policy for the enhancement of transparency to the public …”.

99 Establishing statutory rights of public access to government information, andcovering all departments, including defence.

100 To government records (unless this information has been given an ‘exempt’ statusfor such reasons as national security or the safety of individuals).

101 Assuring the right of citizens to documents engendered through a case dealt withby any administrative authority, applicable also to defence authorities.

102 Giving individuals the right to access government-held information about themselves.

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2.1.2.3 Ministerial Information Policies

A majority of the participating states gave information about specialministerial institutions managing contacts with the public. The following typesof administrative bodies were mentioned:

‘MoD Directorate of Public Affairs and Information’

‘Press and Information Office’

‘Department for Relations with the parliament, Legal Harmonisation and PublicRelations’

‘Armed Forces Public Information Office’

‘Information and Welfare Service’

‘Ministry of Defence Information Directorate and Press Information Office’

‘MoD public relations and information service’

‘MoD’s Press Centre’

‘Budget Department of the MoD’

‘Press and Information Office’

‘MoD’s Directorate of Public Affairs and Information’

‘Information Department of the Federal ministry of defence and the Morale‘Department of the General Staff of the Army’.103

The participating states also reported on National Information Policies bymeans of supplementary policy methods and tools such as: a) Public Accessto parliament and Administration; b) Publication and Press Centres; c) PressConferences; d) Open Door Events; e) Contact Points; f) Public DefenceEducation; g) Other Societal Factors Promoting Transparency:

103 The respective report notes that this institution ‘provides public statements to thedomestic and international public; organisation of visits of foreign and domesticjournalists and military/diplomatic representatives to the units and activities of thearmy.’


a) Public Access to parliament and the Administration:

Public examination of the armed forces’ activities in parliament and the opportun-ity to attend relevant debates

All civil servants, including those in the armed forces, obliged by law to reply toquestions from citizens

b) Publication and Press Centres:

MoD Press Releases

Public Access to MoD Press Centres

Defence Brochures, Newspapers, Journals, documents issued on the daily servicelife and scope of activities of the armed forces etc.

Organisation of public Conferences and Seminars

Fact sheets on ministry of defence issues

Publication of the defence budget in booklet form, available free of charge,posted also on the Ministry’s website, information in both national and foreignlanguages

Yearbook on the army, containing political and social issues of the military

c) Press Conferences:

Access to MoD and GST press conferences

Provision of security policy information to the domestic and international publics

Informing of the Mass Media

Contacts and cooperation with the media

Institutional contacts with the civil authorities

d) Open Door Events:

Organising of open door days in military units and activities of the armed forces,with the presence of the media, including visits by foreign and domestic journal-ists and military/diplomatic representatives

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e) Contact Points:

At every command level there are authorities responsible for contact with thepublic’

Contact points of Armed Forces Conscription and Recruiting Stations

Specifically trained officers provide information in schools, at discussions andvarious events (Citizen’s Service of the MoD)

Personal contacts

f) Public Defence Education:104

Recruitment campaigns, including questions about the armed forces’ corporateidentity

Regional contacts and information

Intensive visitor services

Individual replies to letters from the public

High-level seminars for public opinion multipliers

Exhibition providing information about security policy and the armed forces,including three Information exhibitions for the army, air force and navy

Information service about security policy matters provided for schools byspecially-trained youth officers

Regional seminars and discussions organised by local military organisations’

104 Some of the established democracies underscored that the provision of ‘pure’information to the public was most important but not sufficient for a ‘credible’informing of the public. Additional critical debate and open dialogue on securitypolicy matters were indispensable for public enhancement and promotion of trans-parency and understanding, especially between members of the young generationand the armed forces. Therefore, ministry of defence public relations and informationservices were sometimes part of integrated public information concepts. One NATOmember, for instance, provided detailed information on its active defence informationpolicy and education. As the national ministry of defence placed great importanceon informing and educating the public about the role and activities of the armedforces, and opening the Ministry to the public, it put considerable effort into identify-ing opportunities to publicise and promote the work of the armed forces, and into


g) Other Societal Factors Promoting Transparency:105

The fact that politicians, members of the militia system and representatives of thepublic administration are involved in important civil or military organisations andassociations provides for a certain degree of external control

Personal Contacts

h) Use of Modern Information-Transmission Technology:106

Governmental and ministry of defence homepages, including defence depart-mental web sites providing links to the homepages of other departments like theMinistry of Foreign Affairs or Interior etc, including information on nationalsecurity policy

CD-ROMs

Videos

Brochures, leaflets and posters

increasing the means by which such information could be provided to the public.Press notices were issued and briefings given on all significant decisions and eventssuch as decisions on the procurement of equipment, the deployment of forces onoperations and major exercises, as well as decisions on policy matters. The website of the ministry of defence provided links to other associated sites, includingthose maintained by each of the single services, and provided a considerable amountof information about the armed forces. In addition, at the start of any militaryoperation, a new site was established specifically related to that operation. Further-more, special exhibition tours appeared at local exhibitions and shows, at whichdefence policy and the activities of the armed forces were explained and displayed.In addition, services presentation teams visited schools, institutions and localcommunities. Finally, links were maintained with the academic community, andconferences and seminars held at which information was exchanged in an openatmosphere.

105 Individual established democracies emphasised their armed forces’ militia systemand specific societal aspect of civil-military relations, which support general trans-parency on defence matters.

106 Finally, a progressive number of participating states tend to report on their use ofspecific modern information methods and technology for the dissemination ofinformation.

242 PART II

Opportunity for on-line application to gain access to certain information

Information hotlines

2.1.3 Constitutionally Established Authorities and Procedures to Ensurethe Democratic Political Control of the Security Sector

Item 4 of the Questionnaire is of particular relevance from the viewpointof democratic control of armed forces. Moreover, the explicit reflection of thebroad concept of the armed forces according to paragraph 20 of the Codeprovided a unique opportunity to exchange information on the whole securitysector.

Similar to the reporting under item 2,107 the reporting under item 4 ofthe 1998 Questionnaire has shown that the participating states generally perceivethe principle of democratic control of armed forces as a prerequisite for success-ful democratic and market-economic transition. Accordingly, many of the newdemocracies in Central and Eastern Europe had no doubts about their politicalcommitment to adopting European and North-Atlantic standards of democracyand civil-military relations.108

This trend may have been reinforced by the fact that the official informationexchange on the Code of Conduct started in 1999, the year of the joining ofthree new NATO members as well as the adoption of the Membership ActionPlan. But item 4 also refers to paragraph 20 of the Code, which provides fortwo rationales of democratic control of armed forces. First, the participatingstates consider the democratic political control of the security sector to be anindispensable element of stability and security; furthermore, they regard the

107 The information exchanged under items 2 and 4 of the Questionnaire shows overlaps,within many national reports, especially with regard to the description of the compe-tencies and responsibilities of constitutionally established authorities.

108 Two exemplary statements from countries in East-Central Europe shall illustratethis aspect: “The country, in accordance with its development into a modern anddemocratic state, considers the civil and democratic control of the armed forcesas one of the most significant accomplishments of the developed Western demo-cracies.”; and: “Currently, an efficient democratic and political control of the Armyis ensured through a consistent implementation of the constitutional and legalprovisions. A process is now under way to reform the existing legislation … witha view to harmonising it with the legislation of developed democracies, in particularthat of the European Union”.


integration of their armed forces with civil society as an important expressionof democracy.109

The evaluation of item 4 basically follows the proposed structure of thesecurity sector according to paragraph 20 of the Code: armed forces (4a);paramilitary forces (4b); internal security forces (4c); intelligence services (4d);police (4e). However, a majority of participating states reported that they donot maintain either paramilitary or internal security forces, and even the rem-aining participating states generally exchanged few information relating to item4b and 4c.110 That is why the two categories will be evaluated together inone sub-chapter. Compared to this, the participating states submitted more com-prehensive information on intelligence services and the police. In the case ofthe latter, many of the participating states reported on current (police) reformprogrammes.

Accordingly, four sub-chapters have been established: General Informationon the ‘Armed Forces’; Specific Information on Paramilitary and InternalSecurity Forces; Intelligence Services; Police and Police Reform.

2.1.3.1 General Information on the ‘Armed Forces’

Eight issues are reflected in this sub-chapter. The first issue has to do withthe wording used by item 4a with regard to the concept of military forces. Thesecond issue reflects the possible distinction to be made between so-called ‘first-and second-generation measures’ in security sector reform. The third issuerelates to the principle of civilian control of the armed forces and the civilianisa-tion of defence ministries. The fourth issue reflects the competencies andresponsibilities of the constitutionally-established authorities. This issue hasbeen one of the major concerns of the information exchange. The fifth issuedeals with certain provisions in the case of civil-military tensions. The sixthissue summarises some of the regulations with regard to checks and balances

109 See: Ghebali, Part I of the present book, p. 12; p. 63.110 This is an interesting result of the information exchange, since according to the

handbook for parliamentarians on parliamentary oversight over the security sector,“nearly all countries in the world have other state military organisations besidesthe military ... closely linked to the military and in some cases the military providesequipment, access to military bases, training and assistance”. Parliamentary Over-sight of the Security Sector; Principles, Mechanisms, Practices (Handbook forparliamentarians, No. 5 – 2003). DCAF, IPU, Geneva 2003, p. 58.

244 PART II

between the constitutional authorities. While the seventh issue relates to specificaccountability mechanisms, the last and eighth issue reflects the specific institu-tion of state auditing.

(1) From a strictly terminological point of view, item 4a constitutes aninconsistent element compared to paragraph 20, to which item 4 refers. It isinteresting that item 4a requests information on ‘armed forces’ while the respect-ive paragraph 20 of the Code uses the notion ‘military’ (forces) to indicate thefirst of the five categories of the security sector. One of the consequences ofthe choice of that terminology is that some of the national reports provideda global reply under item 4a only while remaining rather undifferentiated withrespect to the other four sub-items (4b-e). This may be one reason to arguethat the notions of ‘armed forces’ and the ‘military’ cannot mean exactly thesame.111

(2) As in the case of item 2, the participating states’ reporting under item4 has been dominated by the provision of factual information on institutionaland formal/legal information. The information submitted shows that most ofthe participating states have established democratic standards of civil-militaryrelations by amending the relevant constitutional and legal provisions. Interest-ingly, while in the established and traditional democracies, the principle ofdemocratic control of armed forces is usually not enshrined as such in a con-stitutional and legal framework, some of the emerging democracies from Centraland Eastern Europe have adopted legal provisions on democratic and civiliancontrol.

However, these measures taken by the emerging democracies generally referto the so-called ‘first-generation measures of security sector reform’.112 Com-

111 Furthermore, this would also provide an argument to strictly distinguish the notionof ‘democratic control of armed forces’ from the term ‘democratic control of thearmed forces’. After all, item 4 may be an illustrative example that information-gathering for the preparation of national returns appears to be particularly complexunder item 4, since such information logically goes far beyond the ministry ofdefence.

112 Tim Edmunds: Security Sector Reform: Concepts and Implementation, DCAF,Working Paper 86. Geneva 2002. p. 18. One of these measures is the introductionof democratic civil control of the armed forces. One (newly-admitted) NATO andEU country therefore noted: “The National Defence Forces are subordinated to civiland democratic control. The country has established civil-military relations inaccordance with the traditions of other democratic states. The principles of demo-cratic control are defined in the Constitution and other legal acts concerning nationaldefence”.


pared to this, little information was exchanged with regard to the implementationof ‘second-generation reforms’, as well as on the strategies through which theparticipating states aim at effectively implementing and applying those normsin the long run.113 Individual national reports actually indicated that furtherinstitutional measures were necessary at parliamentary level.114

(3) There is a certain trend within a couple of participating states to con-tinuously ‘civilianise’ their defence ministries and also other (formerlymilitarised) bodies of the security sector. Item 4 is therefore illustrative alsofor the principle of civilian control of armed forces. However, the item requestsinformation on the ‘constitutionally established authorities’ without referringto the supplement ‘… vested with democratic legitimacy’.115 Accordingly,item 4 does not reflect the notion of ‘civilian control’, but uses the term ‘demo-cratic political control’.116 Some of the participating states, especially theestablished democracies, have therefore emphasised the relevance of bothparliamentary and civilian control of the armed forces at all times.117 Manyof the national reports underscored that they had a civilian minister ofdefence.118 While some of the established democracies underlined that this

113 Second Generation Security Sector Reform encompasses, inter alia, the trainingand education of both military and civilian security sector personnel, human resourcemanagement issues, as well as the engagement of civil society actors in the reformprocess. Tim Edmunds. op. cit., p. 19.

114 “The parliamentary control of the armed forces, of crucial importance for civildemocracy and civil society, has not been fully regulated in terms of institutions.”

115 As contained in paragraph 21 of the Code.116 Neither paragraph 20 nor paragraph 21 refers to civilian control. However, the

provision of paragraph 21 to ‘maintain effective guidance to the armed forces’implicitly reflects this principle, although theoretically the Code thus offers theopportunity that such a guidance may also be exercised by a military leadership.Paragraph 21 also stipulates that the armed forces shall ‘act solely within theconstitutional framework’ and that their roles and missions shall ‘be clearly defined’.However, the Code does not specify how and in particular by whom both theconstitutional framework and the roles and missions shall be defined. Paradoxically,the Code therefore leaves the door open even for a constitutional framework wherethe military themselves would be the guardians of democracy and democraticlegitimacy.

117 The special competences and responsibilities of security and defence committeesand commissions were highlighted, as well as specific institutions like the armedforces ombudsman/parliamentary commissioner for the armed forces.

118 One of these countries, however, explained that the Defence Minister cannot bea serviceman who has not yet retired from active service.

246 PART II

had been established a long time ago, the emerging democracies have adoptedrelevant legislation only recently. Another trend amongst the emerging demo-cracies is to progressively enlarge the number of civil servants in ministriesof defence.119

(4) A majority of the participating states have reported on the competenciesand responsibilities of the constitutionally-established authorities, includingthe parliament; the judiciary; the government; the president/head of state; inparticular also the ministry/minister of defence and the chief of general staff.The reporting under item 4 clearly shows that some of the emerging demo-cracies from Central and Eastern Europe tend to ‘copy Western-style standardsof civil-military relations’. Not only did they submit similar factual informationto that of the established democracies, but also reported on the adoption ofspecific legislation providing democratic control of armed forces.

One of the newly-admitted NATO countries120 underscored that the prin-ciple of democratic control of armed forces was one of the fundamental prin-ciples of a democratic society and firmly established in the Constitution, provid-ing for a clear division of responsibilities among the main constitutional author-ities.121 The principle of democratic control of the armed forces is furtherelaborated in the Defence Law according to three main aspects: Legislative(parliamentary) control; Control of the executive authority; Control by thecitizens. Since the report has been exemplary in its kind and even more compre-hensive and detailed than those of many established democracies, it is compiledin a table under Annex 3 of Part II of the present book. Complementary to this,a summary of competencies reported by some of the established democraciesbut also some of the consolidating and emerging democracies in East-CentralEurope is compiled in another table under Annex 4 of Part II of the presentbook.

National reports under item 3 by the CIS countries are comparative in manyways. However, two Caucasian countries additionally distinguished between

119 Thus reflecting the relevance of civil servants in senior defence ministry positionsin order to guarantee effective civilian administration and management of the armedforces. Some of the established democracies have underlined that the national armedforces are largely integrated into the administrative apparatus of the state. Thearmed forces are thus a regular organ of the public administration, and thereforesubject to control mechanisms established by constitutional law.

120 The national report explicitly reflected on the ‘Principle of Democratic PoliticalControl of Armed Forces and the Division of Competencies and Responsibilities’.

121 In this case the National Assembly; President; Council of Ministers; minister ofdefence; Constitutional Court.


the three systems of presidential control, parliamentary control, and judicialcontrol. The information submitted by these two national reports are thereforecompiled in a table under Annex 5 of Part II of the present book.122

(6) Few countries have provided information on how they deal with existingtensions between civilian and military leaders. One established democracy,however, noted in this respect, that tensions between the president and parlia-ment are usual in civil-military relations.123 Another country also underlinedthat the national legal framework ensures a considerable autonomy to the chiefof defence staff both with regard to accountability and operational requirements.While he normally reports to the defence minister, he can report directly tothe prime minister. The chief of defence staff has even a degree of independencefrom the prime minister and is independent of the latter and even of parliamentin situations of ‘aid to the civil powers’ (for assistance in national civil orhumanitarian disaster situations) where he has authority to respond immediatelyto requests from the civilian authorities of the provinces.

(7) Some of the participating states also reported on mechanisms of constitu-tional checks and balances between legislative, executive and judicial author-ities. Two examples for each branch are summarised in the following table:

122 One of the two Caucasian counties also referred to specific accountability respons-ibilities of the minister of defence. He must report on the ministry’s activities tothe Cabinet of Ministers, attend joint sessions of the parliament and the Cabinetof Ministers, attend hearings on issues raised by members of the parliament, replyto inquiries made by members of parliament. Finally, all constitutional authoritiesand their activities are bound by the following domestic and international principles:Constitution; Laws; Decrees of the President; Decisions of the Cabinet of Ministers;By-laws of the Ministries approved by the Cabinet; Norms of international law;as well as of justice, democracy and human rights. In the case of the latter, the reportstates that these principles are particularly binding for the Ministries of the Interiorand National Security.

123 “The exact division of authority between the president and parliament is a matterof frequent debate, but it is clear that the military forces are at all times subjectto the collective authority of the elected and appointed officials of the executivebranch and the elected officials of the legislative branch of government.”

248 PART II

Legislative Executive Judicial

‘Parliament isthe only legis-lative authority’.

‘While the primeminister is thefinal arbiter onall questions ofnational defence,controls exist toensure there is noabuse of power’.

‘Parliament has enacted a Uniform Codeof Military Justice, which empowers thepresident and the military chain of com-mand to exercise effective discipline overthe armed forces, providing detailed ruleson the conduct of judicial and non-judicialproceedings for all the military services.The exercise of the disciplinary power issubject to independent judicial review by acivilian court, subject to the overall super-vision of the Supreme Court’.

‘The governmentis obliged toconsult with theforeign affairscommittee beforemaking anydecision ofmajor im-portance fornational foreignpolicy.’

‘The chief ofdefence staff isappointed by thehead of state andserves as long ashe retains theconfidence of theprime minister’.

‘In accordance with the decision of theConstitutional Court, the government shall,as a rule, seek the prior consent of parlia-ment for each deployment of the armedforces’.

Furthermore, the participating states submitted information relating tomechanisms of democratic accountability to both parliament and the broaderpublic:


Democratic accountabilityto parliament

Democraticaccountabilityto the broader public

‘General parliamentary oversight of the governmentthrough defence commissions, parliamentary debate,enquiries, hearings, and accountability in particular bythe minister of defence’.

‘Ultimate control andoversight is exercisedby the citizens throughthe publication ofparliamentary andadministrative acts andthe access to informa-tion related to thearmed forces. Votingpower with the powerof potentially sanction-ing the government andparliament’.

‘Secretary of State for Defence is a member of thegovernment and is accountable to parliament for alldefence matters; minister of defence accounts to parlia-ment for all defence issues, including appearance, asrequested, before both Houses and before relevant par-liamentary committees’.

‘Citizens andorganisations can makeenquiries to thedefence committee’.

‘The government’s security and defence policy is sub-ject to parliamentary control’.

‘Minister of National Defence is an elected official andaccountable to parliament for all defence matters. He isobligated to answer questions put to him by the defencecommittee or by any member of parliament. He reportsto the Prime Minister and his Cabinet’.

‘Even in times of crises and enhanced competencies andpowers assigned to the authorities, the latter remainpolitically responsible for the conduct of their’operations and have the duty to account before parlia-ment.

(8) Finally, a special democratic control function is exercised by the stateauditing office. It is an independent state body exercising economic control.In some countries, the office is led by the Auditor General who is appointedand recalled by parliament upon the nomination of the President. It controls

250 PART II

the economic activities of the public institutions, state enterprises, and otherpublic organisations, the use and preservation of public property. During thepublic debate relating to the implementation of the state budget, the auditorgeneral is required to present the overview on the use and preservation of stateassets during the previous budgetary year. In other countries this institution,having the right to control the use of budgetary finances, is also called the StateFinancial Inspectors. Since the office is an independent parliamentary institu-tion, special legislation requires all central government authorities to supplythe Auditors of the parliament with public documents, details and statements,which the Auditors deem necessary for their review and upon request.

2.1.3.2 Specific Information on Paramilitary and Internal Security Forces

Items 4b and 4c of the 1998 Questionnaire request information on para-military and internal security forces. It is particularly significant to note thata majority of the participating states stressed that they do not maintain suchforces. Accordingly, the reports often do not contain any other information onmilitarised troops and formation other then the regular military or defenceforces.124 However, some of the participating states provided information onboth categories of forces, and there are indications that there exist conceptualoverlaps between both types of forces with regard to the organisational structureand the roles and missions of these forces. This chapter therefore summarisesspecific information on paramilitary forces, specific information on internal

124 This is an interesting result of the 1999-2002 information exchange on the Codeof Conduct. However, there has been indirect information submitted by the par-ticipating states indicating that they actually do have such forces, but that they useother terminologies than paramilitary and internal security forces. Certain reportsalso indicate that such forces exist outside the ministry of defence, for instance inthe ministry of interior, but that these forces are not given the description of para-military or internal security forces. After all, both descriptions are perceived insometimes fundamentally distinct ways. For instance, within certain national con-texts, paramilitary forces are considered to belong to irregular or even illegal forces,which means that – if they exist – they do not belong to the regular armed forcesorganised by the state, but probably to other social or private institutions. This wouldalso explain why individual participating states noted that no such (statutory) forcesexist within the borders of their territory.


security forces, as well as information indicating that there are conceptualoverlaps between both forces.125

A majority of the participating states reported that they do not have anyparamilitary forces. However, a few countries mentioned gendarmerie servicesas a national category of paramilitary forces. More countries mentioned thenational border guard services as an explicit category of paramilitary forces.Individual national reports explained that their Border Guards may becharacterised as military organised units subordinated to the Ministry of Interior.The specific status and link of these forces to the ministry of defence has todo with the fact, that in times of crisis or war, these units are integrated withinthe National Defence Forces and put under the command of the commander-in-chief of the defence forces. Subsequently, some countries reported that therewere no paramilitary forces subordinated to the ministry of defence in peace-time. One country also stated that according to a formal decision to subordinatethe rescue board to the Ministry of Interior, this formation would not reinforcethe national defence forces, even in times of crisis and war. As a general resultof the reporting one can say that special legal provisions exist in respectivecountries for the inclusion of paramilitary forces in the armed forces duringtimes of crisis.126

In certain smaller participating states with no extensive defence structuresof their own, the existence of special paramilitary forces ensures the combatingof specific security threats. One country explained that the national coast guardservice includes a special counter-terrorist unit, which (explicitly) constitutesthe country’s paramilitary forces. The activities of this special unit are run bythe state, and the minister of justice is the supreme head of the forces. Heappoints the director general of the forces, who remains in office for a periodof five years. The director general administers the forces’ affairs under theauthority of the minister of justice. Furthermore, this counter-terrorist unit isa department within the national police. Police activities are operated by the

125 While there exist conceptual and organisational overlaps between the military andparamilitary forces, overlapping information has also been submitted by the parti-cipating states with respect to internal security forces and intelligence services (seethe next sub-chapter).

126 “In the territory of the country there are currently no forces defined as paramilitaryforces. The Law on National Defence determines that in wartime or in case ofemergency other military formations, subordinated to the ministry of defence, andsome of the armed formations, subordinated to the Ministry of Interior, will beincluded in the National Armed Forces too.”

252 PART II

state and its functions carried out by law. A regulation on the counter-terroristunit determines the unit’s task and procedures. The commissioner of the nationalpolice is appointed by the minister of justice for a period of five years and isthe head of the counter-terrorist unit.

Relatively little information was exchanged on mechanisms of democraticoversight over paramilitary forces. One country simply explained that its frontierguard was subordinated to the ministry of interior and through that linked toparliamentary control.

As with paramilitary forces (item 4b of the 1998 Questionnaire), most ofthe participating states have reported that they are not maintaining (special)internal security forces (item 4c of the Questionnaire). While certain countriessimply associated the category of internal security forces with the policeforces,127 some other states mentioned a number of specialised security bodiesand services other than the police. Again, border services are placed under thiscategory by some of the states. But there exist also other specialised internalsecurity forces within different ministries, such as defence, interior, justice,treasury, transportation, etc. The following table summarises typical examples:

Defence Interior Justice Treasury Transportation

SpecialPolice Unit

Border Police Bureau ofInvestigation

SecretService

Coast Guard

Criminal Police BorderPatrol

Security Service MarshalsService

Service for CombatingOrganised Crime

Service Gendarmerie

(National/state) Protec-tion Service

127 The participating states are requested to report on the police under item 4e of the1998 Questionnaire. See Chapter 2.1.3.5. Individual reports, however, noted underboth items 4b and 4c that these categories of forces belong to the national policeforces.


The table shows that internal security forces predominantly exist withinnational ministries of interior and also justice – but also in other state depart-ments, including in defence ministries. Placed under the authority of ministriesof interior, they usually occupy functions like special protection forces. Placedunder the authority of ministries of justice, they are often established as specialpolice and investigation services.

Indirect information on internal security forces was provided through thereporting on the legal framework and democratic accountability of internalsecurity forces. One country reported that the Law on the National ArmedForces determines that the Security Service of the parliament and the statepresident and the military counter-intelligence service are components of thenational armed forces, and that the same Law ensures civilian control over theseservices. The report did not explain, however, under which ministries or depart-ments those forces are placed.

Governmental, parliamentary and judicial (civilian) control is exercisedover internal security forces. Some of the participating states reported that thegovernment is responsible for the internal security and stability of the country,appoints the heads of the internal security forces and determines their functions.Individual countries further specified that each of the respective agencies wasunder the authority of the President and special cabinet officers appointed bythe President. In general, it was emphasised that internal security forces aresubject to the same procedures of civilian control as the armed forces. Atparliamentary level, relevant committees exercise oversight over the federalagencies. Individual countries specified that in cases where internal securityforces work in concert with active military forces, a special memorandum ofunderstanding is usually drawn up to provide for respective responsibilities andfinancial arrangements. In these cases the civilian agencies may also requestsupport, which is provided by the active armed forces on a reimbursable basis.Finally, administrative actions taken by internal security forces against thecitizen can be contested by general informal remedies (remonstrance, petitionfor administrative review, disciplinary complaint) and formal legal remedies(objection, lawsuit).

The reporting on paramilitary and internal security forces shows that thereare certain organisational or conceptual overlaps, as well as with regard to theirroles and missions. Moreover, and in particular in the case of internal securityforces, there are overlaps also with the next category (see chapter 2.1.3.4) ofintelligence services. Again, the terminology provides useful indications as tothe possible reasons for the often overlapping information submitted by theparticipating states. In the case of the overlaps between internal security forces

254 PART II

and intelligence services, it may stem from the fact that some of the particip-ating states use the notion of ‘internal security services’, while others are morefamiliar with the term ‘intelligence forces’. Others report on ‘security andintelligence services’, etc.128 Finally, it may be noted that considerably moreinformation was provided by the participating states on intelligence servicesthan on paramilitary and internal security forces.

2.1.3.3 Intelligence Services

A majority of participating states provided information on intelligenceservices (item 4d of the Questionnaire) – separately from their reporting onthe ’armed forces’ (item 4a). One country explained that it had no intelligenceforces as such, however the Minister of Internal Affairs had at his disposal aninternal security service, which investigated domestic threats to the state.129

Within the participating states of established democracies and NATO/EUcandidate countries several approaches to intelligence services exist. In somecases, the participating states simply mentioned respective services withoutproviding further information on them – such as: national intelligence service;central intelligence agency; civil security service; secret services etc.130

Some countries combined information on missions with information on theorganisational structure of their intelligence services. One participating stateexplained that the national intelligence services system is composed of twodifferentiated fields of intervention: a strategic defence and military intelligenceservice aimed at external threats and a security intelligence service aimed atinternal threats. Another country noted that three security and intelligenceagencies exist: the security service, the secret intelligence services, and thegovernment communications headquarters. Another national report also men-tioned three separate intelligence services within the national security system:the bureau of constitutional protection (which also ensures operative control

128 See also the terminological comparison with the 1990 Moscow Document underchapter 1.1.1 and 1.1.2.

129 Some of the participating states noted under item 4d that reporting on IntelligenceServices is even explicitly or implicitly included within item 4a on the armed forces.

130 Other countries provided organisational information on paramilitary or specialsecurity forces indirectly when reporting on the missions of the armed forces. Forinstance, one country noted that the national ‘security services’ are assigned missionsagainst threats from organised crime, espionage, terrorism and sabotage.


over the other security services), the military counter-intelligence service andthe Security Police.

Furthermore, the participating states distinguished civilian from militaryintelligence services. One report even mentioned five different services. Thethree civilian security and intelligence services are the information office,national security office, national security special service, and the two militarysecurity and intelligence services are the military intelligence office, militarysecurity office.

Yet another group of participating states provided information on the exist-ence of different services in specific ministries and at the level of the head ofstate. The following table illustrates 11 national examples:

countryexampleNo.

Head of state/President

Ministry ofInterior/Justice/ Police

Ministry/minister ofdefence

(Chief of)GeneralStaff

ArmedForces

1 ‘defence intel-ligence service’(Subordinatedto the ministryof defence andheaded by theDirector of theservice)

2 ‘federal intel-ligence service’(Subordinatedto the head ofstate)

‘federal officefor the pro-tection of theconstitution’

‘militarycounter-intel-ligence service’

3 ‘military policeand militarycounter-intel-ligence service’

‘militaryintelligence’

4 ‘military intel-ligence service’and‘militarydefence intel-ligence service’

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countryexampleNo.





ArmedForces

5 ‘federalpolice’ (Sub-ordinated tothe federalministry ofjustice andpolice)

‘military intel-ligence’

6 ‘military policeand militarycounter-intel-ligence service’

‘militaryintelligence’

‘nationalintelligenceservice’

7 ‘federal officefor the pro-tection of theconstitution’(Subordinatedto the ministryof interior)

8 ‘office ofnationalsecurity’(Accountableto the Presi-dent; acting asan umbrellaorganisation forall the intel-ligence serv-ices)

9 ‘federal intel-ligence service’(Subordinatedto the Head ofstate; respons-ible for intel-ligence abroad)


countryexampleNo.





ArmedForces

10 ‘militarycounter-intel-ligence service’(A domesticintelligenceservice for theprotection ofthe armedforces)

11 ‘militaryintelligenceand securityservice’ and‘nationaldefence radiocentre’131

The information submitted on intelligence services illustrates that com-parative assessment is difficult. The information reflects the different nationalapproaches and traditions, and the existence of different legal regulations andnational policies to oversee intelligence services. One country noted that inconsistency with the federal and republican constitutions and laws, intelligenceservices are established within the general staff of the federal army and therepublican ministries of interior.

Special Legislation on intelligence services exists due to the very natureof the services and their activities. Individual reports underlined that theirnational security services are separate budgetary organs with national authorityand independent economic management under the direction of the government.They operate within a clearly defined legal framework and represent integralsegments of the executive government bodies. Some countries reported on theadoption of new legislation for a clearer definition of the services’ roles andmissions and to better protect the private life of citizens.

131 Both within the armed forces. The national report additionally mentions ’otherauthorities in the field of intelligence’ as a third category of intelligence serviceswithin the armed forces.

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Parliamentary oversight over intelligence services is generally enhancedand exercised by special parliamentary committees on intelligence establishedby law. Furthermore, there is a distinct trend to adopt new legislation and theestablishment of standing committees in order to ensure both an enhancedcoordination between and more operational effectiveness of the services.

The following table summarises six examples of special laws on the intel-ligence services:

‘Security Institutions Act’ (Recently adopted and regulating the work of securityinstitutions and establishing a new set of functions and competences of thenational security institutions)

‘Intelligence Service Act’ (Establishes parliamentary oversight of all three secur-ity and intelligence agencies)

‘Law on the Office for National Security’ (Providing for parliamentary oversightand legality of the work of the intelligence services)

‘Special Act on domestic intelligence’ (Clearly defining organisational roles andduties and operational rules and regulations)

‘National Security Act’ (Establishing the National Security Council, the CentralIntelligence Agency, intelligence activities by the Department of Defence, fundingrules, accountability to civilian leadership, and parliamentary oversight)

‘Regulation of Investigatory Powers Act’ (Regulating any interception of com-munication by public authorities, including the intelligence services)


Finally, some of the participating states mentioned special institutions andauthorities for governmental, parliamentary and judicial control:

Parliamentary oversight over intel-ligence services exercised throughspecialised committees/ commissions

Governmental direc-tion and control ofintelligence services

Judicialcontrol ofintelligenceservices

National Security Commission President (directs andoversees and appointssenior officials as headsof the services)

Judge(designatedeither by thepresident orthe Metro-politan Courtof the minis-try of justice,he must grantauthorisationof covertinformation-gathering bythe nationalsecurityservices)

Parliamentary Committee on InternalPolicy and National Security132

Prime minister (hasoperational authorityover the national intel-ligence services that areanswerable to him)

SolicitorGeneral;Federal Courtjudge (bothmust approveapplicationsfor a warrantto engage ininformation-gatheringactivities)

132 Oversees the legality of the work of the intelligence services.

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Parliamentary Committee for Super-vision of the National Intelligence Ser-vices (Including a Special Audit Com-mittee of the National Council)

Civilian ministers ofdefence , justice andpolice (relevant servicessubordinated to andoverseen by them)

Special commission of the parliament-ary Committee for Control of the Ad-ministration (regularly informed onstructures, budgets and activities of theservices. The services are periodicallyinspected by this special commission.Currently, the services are also sub-jected to structural reorganisation)

Intelligence and Security Committee(recently created. Its functions are toexamine the expenditure, finance andpolicy of the Security and IntelligenceAgencies. It is comprised of nine parlia-mentarians drawn from both Houses.The committee is appointed by thePrime Minister in consultation with theLeader of the Opposition, and no mem-ber may be a current minister)

National Security Coun-cil (executing controlover all services)

Intelligence Services Supervising Coun-cil (composed of three citizens electedby parliament. Annual reports on activ-ities are submitted to the Council)

Armed Forces Intel-ligence Board (monitorsthe Services within thearmed forces. All mem-bers of the board, in-cluding the chairmanand vice-chairman, areappointed by thegovernment for a fixedperiod of time)





Solicitor General (responsible for theactivities of the Service. He is anelected member of parliament and mustpresent every year a Public Report toparliament on the Services’ activities)

Services’ Review Committee (made upof members of parliament)

Parliamentary Control Commission(elected by the parliament from itsamong members at the beginning ofeach legislative period)

National Security Committee(responsible for parliamentary oversightover the civilian national security serv-ices and having wide-ranging authority.The Chairman may only be a memberof the opposition); defence committee(oversight over the military securityservices)

Parliamentary Commissioner of civilrights (in compliance with thecorresponding legislation, he may con-duct an inquiry into the violation ofconstitutional rights (by intelligenceservices) that he/she becomes aware of)

Parliamentary Commissioner for DataProtection (controls compliance with thelaw on the protection of personal dataand the publication of data of publicinterest, and other statutes related todata management)

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Standing sub-committee (recently estab-lished by the competent committee inthe Federal Assembly for reviewingintelligence measures to secure thecountry’s military defence concerningintelligence services in the militaryfields)

(private) Parliamentary Commission(consisting of the parliamentary leadersof the four major political parties’. Thefindings of the Service are reported bythe commission)

2.1.3.4 Police and Police Reform

There is one group of countries that emphasised that the police were notplaced under the national or federal authorities. Some of the Federal Statesreported that public police structures and legislation are under the authorityand competences of the local or regional authorities, including their ministriesof the interior.133 In these cases, the police services are subject to the authorityof the provinces, republics, cantons or Länder, etc. Individual countries evenexplained that the existing federal police structures were actually an intelligenceservice.

Other participating states reported on the existence of national public policeservices and provided information on democratic oversight over national, localand special police structures, as well as police units assigned for internationalsecurity missions. The reporting under item 4e of the 1998 Questionnairegenerally shows that many of the participating states undergo fundamentalreform processes of the police structures. This sub-chapter therefore evaluates

133 Individual countries reported that the police powers were distributed between thefederal ministry of the interior and the ministries of the interior of the respectiverepublics.


three main topics: Organisational and conceptual information on general andspecial police forces; international police cooperation and coordination;national police reform programmes.

Since in established democracies, the organisational structure of the policeis usually laid down in the Police Law, one of the new NATO members men-tioned that the Police Act has been enhanced with respect to local governmentand local public security, as well as cooperation between local authorities andthe police in order to establish, enlarge and upgrade the local police. OneNATO/EU candidate country listed four services: the Basic Police (i.e. policedepartments, traffic police, border police, airport and maritime police), theCriminal Police, the Special Police (i.e. anti-terrorist units) and the Constitu-tional Order and Protection Service.134

Some of the national reports mentioned their border guard services underitem 4e on the police (individual countries distinguish between the NationalPolice Service, Territorial Police Service and the Border Police. Small EUcandidate countries have emphasised that there exist no private police forcesin their countries or underscored the appropriate ethnic composition of theirnational police units. These countries also mentioned special assignment groups,as well as police officers who are specially trained to deal with crisis situationssuch as public disturbances and terrorism: special anti-terrorist squad, themobile immediate action unit against organised acts of violence, the PresidentialGuard Unit,135 as well as separate military forces,136 relating to the NationalGuard service.

Some of the participating states particularly emphasised their efforts withregard to international police cooperation, including the deployment of policeunits on peacekeeping missions. This includes efforts taken to coordinatenational policing with international, bilateral and European structures.137

Another country mentioned that a recent amendment of the Police Act providespolicemen with powers to act as armed security corps in specific situations

134 One participating state made an interesting statement with regard to police structuresin relation to the other categories of forces and services mentioned in item 4: “Thecountry has a national police service and the Defence Force. There are no otherparamilitary, internal security, intelligence or police forces in existence within thestate outside these two bodies.”

135 Protecting the ‘President, his family and the presidential palace’.136 To ‘support the Army and the Security Forces’.137 One newly-admitted EU country mentioned that the ministry of justice and public

order coordinated European and international police activities.

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relating to public order and security to the extent stipulated by law. Cooperationis enhanced with international organisations, police institutions and securitycorps of other states. The alignment of national police with European policelegislation encompasses trans-boundary tracing and pursuit, regulating thehandling of personal data, and bilateral cooperation. Particular reference wasmade to INTERPOL and EUROPOL, as well as the Schengen Agreement,including the establishment of national offices of EUROPOL.

Some participating states referred to their provision of personnel forpeacekeeping operations, including the United Nations. One country mentionedthat subsequent to the adoption of a recent governmental ordinance, a nationalpolice unit for deployments abroad had been institutionalised. One NATOcountry made an interesting statement from the perspective of civil-militaryrelations.138

One of the major trends within the reporting on item 4e was the reflectionof national Police Reform programmes. Police Reform partly aims at theestablishment of integrated structures and policies of the service. For instance,border and aliens police departments of regional directorates of the police forceare subordinated to the federal office of border and aliens police with theobjective of improving coordination, management, personnel elements, andtechnical equipment.

Reference was also made to new police legislation,139 including the pro-vision of new rules for processing complaints against police officers. In thiscontext, certain participating states have particularly emphasised the apoliticalrole and conduct of the police services. While police officers shall take aprofessional oath to the state, political parties and political movements shallnot be permitted within the police force. When on service, police officers shallbe permitted to engage in educational and research work, provided that thisdoes not contradict their professional interests and duties. Standards of inter-national law and human rights play an important role within recent policereform efforts. Accordingly, national reports sometimes underscored that PoliceLaws provide for the non-discriminatory protection of all citizens andorganisations as well as other persons who are on the territory of the country,regardless of their citizenship, nationality, origin, social and material status,social and political views, religious beliefs and other factors.

138 “In an international operation where police training or services are required, per-sonnel for such duties are normally recruited from the civilian sector.”

139 Individual countries noted that the national Police Act was originally passed byparliament as early as in 1873.


However, the reporting by some of the participating states on civilian anddemocratic political control of the police forces is sometimes shortened tostereotype statements underlining that civilian control ‘is ensured by the factthat the Police is under the jurisdiction of the Ministry of Interior/Justice/PublicOrder’.140

One participating state explained that – as with the armed forces – the policeare part of the public administration, while the security administration and thesecurity police are subject to the control established by constitutional law.Several measures are taken under constitutional law for the protection andsafeguard of human rights. Human Rights Advisory Boards are established toadvise the Minister of the Interior on human rights issues. In addition to thereview of measures for the protection of constitutionally established agenciesand their operative capacity, standing committees on these matters (withincompetent committees) are established in National Assemblies, includingspecialised parliamentary review bodies like for instance the ‘parliamentarycommittee for the control of police services’, or ‘parliamentary committees oninternal policy and national security’. Respective specialised bodies overseethe work of all police services with particular attention to safeguards of therights and freedoms of citizens.

In addition, police powers are set out in statutes and all their actions aresubject to review by an active and constitutionally independent judiciary, aswell as Independent Police Complaint Authorities. Parliamentary or Ministryof Justice Ombudsmen, parliamentary Commissioners, Police Inspectors, PublicProsecutors, and Solicitor Generals – themselves accountable to parliament –have special oversight competences. One country has reported on the recentestablishment of a Police Inspectorate.141

140 Three such examples may be cited: “Civilian control of the police is ensured bythe fact that it is organised under the jurisdiction of the Ministry of Justice. Itsactivities are regulated by the Constitution and current legislation.”; “Civilian controlover the Police is ensured by the fact that the Police are placed under the jurisdictionof the Ministry of Public Order, which is a branch of the government.”; “Civiliancontrol over the Police is ensured by the fact that the Police are placed under thejurisdiction of the Ministry of Interior, which is a branch of the government.”

141 “The Minister of Justice, Equality and Law Reform published measures for newinspection arrangements for the national police service and new procedures fordealing with complaints against it. The new Police Inspectorate will have thecapacity to examine every aspect of police operations policy from the point of viewof best policing practice. It will be the responsible organisation for the investigationof complaints. New legislation is required to give effect to the new Inspectorate

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Individual national reports have mentioned that direct control of the policeis exercised by the President, who appoints the Secretary-General of theMinistry of the Interior and Directors of the National Services, upon the re-commendation of the government. Others emphasised in turn that ultimatecontrol was exercised by the citizens due to the publication of parliamentaryand governmental acts related to the armed forces, as well as the electoratedue to its right and obligation to vote and power to sanction the acts of govern-ment and parliament through the organisation of democratic elections.

The following Special Police Control Institutions were mentioned by anumber of participating states:

‘Constitutionally established authorities’

‘Standing committees’

‘Parliamentary Committee on Internal Policy and National Security’

‘Parliamentary committee for the control of Police services’

‘Courts of Public law’

‘Constitutional Court and the Administrative Court’

‘Court of Audit’

‘Independent Administrative Tribunals’

‘Ombudsman and the Data Protection Commission’

‘Ministry of Justice Ombudsman’

‘Public prosecutors’

‘Inspector General of the Police’

‘Parliamentary Commissioner’

‘Parliamentary Commissioner of Civil Rights’

‘Human Rights Advisory Board’

‘Police Inspectorate’

Director of Public Prosecutions

and it is currently being prepared. The authority to prosecute a person for a criminaloffence rests with an independent officer, the Director of Public Prosecutions.”


Solicitor General

Police Complaints Board/Authority

One of the emerging democracies of East-Central Europe, providing com-prehensive information on recent police reform activities, also referred to legalamendments and international cooperation efforts aimed at the De-politicisationof the Internal Ministry Structures.142 The same participating state mentionedthat due to cooperation with an international non-governmental organisation,the interior ministry structures established a special advisory body with a viewto preparing a document that would define the strategy and goals of the interiorministry including a definition of a framework for the reform of the police.The report also noted that the ministry of the interior takes an active part –through the federal ministry of defence – in the implementation of the OSCEVienna Document 1999 on Confidence and Security-Building Measures, in-cluding the provision of information on the units and armaments of the InteriorMinistries. Finally, the country referred to the significant contribution for thereform of police made by the OSCE Mission, which helped to improve the workof police and law enforcement officials. In this framework, multiethnic policeservices were put in place.

2.1.4 Roles and Missions of Military, Paramilitary and Security Forces

This issue was reflected in item 5 of the 1998 Questionnaire. While theparticipating states had to provide information, under item 4, on five categoriesof forces, under item 5 they are to submit information on just three distinctbranches of the security sector (consistent with respective provisions referredto in the Code). Moreover, the terminological inconsistencies of the Question-naire, as identified in Part I of this analysis, have led to a certain confusion

142 “The Law on Police has been drafted and will soon be subject to public debate bydomestic and foreign experts, including from the OSCE, the Council of Europeand others. A police law will substantially change and improve the work of policeauthorities and their control by parliament. It will make (police services) moreefficient and otherwise introduce the code of conduct for law enforcement officials.In the Ministry of the Interior (of one of the Federal Republics), external and internalcontrol has been improved by introducing new bodies: the Council of State Securityof the government and General Inspectorate … the Ministry of the Interior has beendepoliticised …”.

268 PART II

of reporting. The lack of a coherent application of terminology to the differentitems and guidelines on the concept of the security sector, including the relativemeaning of ‘armed forces’ (see for instance item 4a) leave the participatingstates alone to decide how they perceive these concepts.

This chapter follows the security sector outline proposed by item 5: militaryforces, paramilitary forces and security forces. However, as relatively littleinformation was exchanged on paramilitary and security forces, they will beevaluated together.

2.1.4.1 Regular Military Forces

The participating states reported on general and special roles and missionsof the armed forces. Special roles include new roles and missions attributedto military and security forces in the combating of new risks and challengesto security.143 Some countries have indicated recent amendments of defencelegislation. However, not all of the reports made a clear difference betweenconstitutionality and legality on the one part and (democratic) legitimacy onthe other part.

Moreover, not all of the participating states clearly distinguished betweenthe roles and missions of the three categories listed by item 5 of the Question-naire: military, paramilitary and security forces. Indeed, as with item 4, manyreports have underlined that the national forces do not encompass paramilitaryand security forces. While some of the countries distinguished between the rolesand missions of the Army, Navy and Air Force, others restricted their informa-tion on the roles and missions of the ‘army’ exclusively while terms like ‘armedforces’ or the ‘military (forces)’ were not used at all. Individual countriesadditionally referred to so-called Home Guards. These forces are establishedfor ‘territorial defence’ or ‘local defence’. However, while special territorialtroops are often seen as regular parts of the national defence forces, most ofthe respective countries apparently make no distinction between military,paramilitary and security forces to categorise the different branches, functionsand roles of their armed forces.

Relatively few counties provided target-oriented information under item5 of the Questionnaire. Many of the participating states have simply emphasisedthat all of their forces are acting within the constitutional framework. However,

143 For instance, one country mentioned organised crime, extremism and terrorism asnew threats.


few countries exchanged information on civilian and democratic control mechan-isms with regard to the roles and missions of the armed forces. There areseparate regulations for the definition and approval of roles and missions.Specific mechanisms exist with regard to oversight of operations.

The reporting with regard to item 5 shows overlaps with the reporting onitem 4 of the Questionnaire. However, the issue of the roles and missions ofthe armed forces is particularly significant with respect to the armed forces’integration with civil society (paragraph 20 of the Code) and in the case ofinternal security missions.144 However, the fact that the 1998 Questionnairedoes not refer to the Code’s provisions under Section VIII on the democraticuse of armed forces and related provisions regulating internal security missions(especially paragraphs 36 and 37 of the Code) may be regarded as an importantomission. As a consequence, the information provided under item 5 tends tobe on a rather general level with no differentiation with regard to specific andnew roles of armed, security and Special Forces. While general statements aremade with regard to requirements of democratic control, few countries dis-tinguished between internal and external roles and missions of the armed forces,including conduct with respect to the human rights and fundamental freedomsof the civilian population. When providing information on how respectiveregulations are applied, some of the national reports did no more than note thattheir armed forces were aware of respect for human rights standards.145 Indeed,some of the participating states tended to emphasise the state’s and armed forceslegitimacy as such. The following statements illustrate this aspect as examples:

‘The national authorities in charge of oversight functions are democraticallyelected’

‘The army is controlled by authorities elected in democratic elections’

‘The armed forces are subordinated exclusively to the people’s will.’

‘In accordance with the Defence Law, the armed forces are (an) armed force ofall citizens of the Republic’

144 One country defined an internal emergency situation as follows: “An internalemergency is any imminent threat to the existence of the country or parts of it.”

145 Professional oath of armed and security personnel are a specific institution to ensurethat the forces’ conduct complies with the legal and constitutional framework.

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On governmental levels, defence legislation provides for the regulation ofcivilian control with respect to command authority, as well as the competencesand responsibilities of constitutionally-established authorities. The participatingstates also emphasised the establishment of a clear chain (and unity) of com-mand. One participating state distinguished between the general command ofthe armed forces exercised by the president (in his function as the supremecommander of the armed forces) under the minister of defence and immediatecommand of the armed forces exercised by the chief of general staff and com-manders of the military units and institutions, which are in accordance withthe regulations approved by the president. In addition, the defence law regulatesthe unity and single chain of command in the use of forces and assets. Finally,the report underscores that orders issued by a superior commander are not tobe carried out if their execution is unlawful. This apparently refers also to theprinciple of individual accountability of armed forces personnel provided byparagraphs 30 and 31 of the Code. One country referred to civilian control ofthe armed forces, emphasising that special roles and missions are possible onlywith ‘governmental permission’. Others underlined the armed forces’accountability to the government with regard to the use of security forces tofight organised crime, extremism or terrorism.

Relatively few reports mentioned mechanisms of parliamentary oversightwith regard to the roles and missions of armed forces. Individual parliamentarydemocracies noted in general terms that since the introduction of Parliament-arism (a very long time ago) the competence of ‘heading the armed forces’ withthe government was under the political control of parliament, and that the armedforces were thus under parliamentary control. Others generally referred to theexistence of parliamentary commissions, emphasising that these commissionswere composed of members elected by parliament. On the other hand, therehave been certain information overlaps with item 3 of the Questionnaire as someof the participating states reported, under item 5, on the issue of the externaldeployment of armed forces.

Individual countries referred to the recent adoption of comprehensive defenceActs, which exclusively regulate the powers of the military. Such new ’MilitaryPowers Acts’ shall cover, in a more systematic manner, legal issues, which haveso far been regulated separately. Such a military powers Act provides a systemfor regulating issues like:


Requests for information

Control of persons

Prohibition against staying at a certain place

Instructions to leave a certain place

Body search

Entering premises

Seizure of property

Use of weapons and data processing

General roles and missions of armed and security forces have been men-tioned with regard to: A) Defence of Territory, Sovereignty and Independence;B) Civil Protection and Civil Emergency; C) Establishment and Maintenanceof Sustainable Defence Capabilities; D) International Cooperation and Obliga-tions; E) Internal Security Missions; F) Combating Terrorism and OrganisedCrime; G) Border Control; H) Safeguarding Public Order and Law Enforce-ment. The corresponding sub-roles and -missions are listed as follows:

A) Defence of Territory, Sovereignty and Independence:

‘Defence of national territory’

‘Total defence’

‘Territorial defence’

‘Territorial defence that covers the entire country’146

‘Preparation of the population, economy and territory for defence monitoring ofzones of strategic interest for the country’

‘Defending National Sovereignty’

‘Defending National Independence’

146 The respective report explains that the army ‘plays a decisive role in defending thecountry and repelling aggression … naval and air defences have gained increasedimportance in territorial surveillance and in the protection of territorial integrity’.

272 PART II

B) Civil Protection and Civil Emergency:

‘Supporting society during severe strains and stresses in peacetime’

‘Civil emergencies’

‘Internal relief operations in the event of a natural disaster’

C) Establishment and Maintenance of Sustainable Defence Capabilities:

‘Continuously be able to monitor and maintain territorial integrity in peacetimeand in periods of crisis

‘Setting up of qualified forces and other resources for international peace-promot-ing and humanitarian efforts’

‘Forming, maintaining and employing the armed forces in the framework of thesecurity policy of the government’147

‘Maintain combat readiness’

‘Train conscripts and prepare reserves

‘Maintaining combat readiness and capability in peacetime’

D) International Cooperation and Obligations:

‘Participation of military personnel or units in international operations’

‘Taking part in Peace Support Operations according to National Laws and inter-national treaties; training military personnel and reserves’

‘Participating in international missions’

‘Carrying out international cooperation’

‘Fulfil military obligations defined by international agreements’

147 The respective report further states that this concerned national and allied ‘defenceand crisis control’. Furthermore, the capabilities of the armed forces are closelyregulated by the IDPP (see answer to question 2), for which the minister of defenceis politically responsible towards parliament. Finally the report explained that ‘itis clear that the events of 9/11 also had an impact on the role and mission of thearmed forces’, and that a ministerial report and letter was presented to parliamentunder the title ‘Terrorism and Defence’, which shall be annexed to the report.


‘Contributing to international security by participation in multilateral operations(UN, OSCE, NATO)’

‘Defending national interests and values while contributing to international peaceand security participating in UN and NATO peacekeeping missions and human-itarian assistance operations’

E) Internal Security Missions:148

‘Protection of (Civilian) Property’149

‘Strengthening the legal system and to maintain order on the territory of thecountry’150

‘Guarding and protecting objects of special significance; convoy and protect thespecial importance transportation’

‘Disarming armed groups and/or individuals’

‘Assist border guard in detecting and arresting border intruders’

‘Guarding prisons and convicted persons

‘Crisis missions … logistical support to the Ministry of the Interior and localpublic authorities, prevention and combating destabilising actions of illegally-constituted armed forces, combating terrorism, control of the ways of access tocertain strategic objectives, civil intervention to protect the citizens and basicinfrastructure, monitoring, warning and safety activities, increasing graduallydefence and mobilisation capacity’

‘Subsidiary internal security missions if the police are not in the position to ef-fectively accomplish the mission and if it is explicitly requested by the authoritiesof provinces and their constitutionally established authorities’

148 The term as such was not always used. However, the missions are clearly attributedto this area.

149 The respective report mentions in this context: ‘Internal emergency … deploymentof armed forces to support the police and Border Police in protecting civilianproperty and combating organised and militarily armed insurgents; if the police arenot sufficient for this domestic tasks … the Constitution provides for additionalpowers to protect civilian property against attacks of non-combatant provocateursand to discharge functions of traffic control and support the police in protectingcivilian property on the basis of police law.’.

150 The respective report states that this is a function provided by the Security Forces.

274 PART II

‘Contributing to international peace support and crisis management’

‘Area protection and defence’

‘Subsidiary operations for the prevention and management of existing dangers’

F) Combating Terrorism and Organised Crime:151

‘Prevention and combating of terrorism and organised crime’

‘Combating organised crime’152

‘Prevention and protection against hostile activities by foreign governments orother organised groups…’

‘Surveillance of the territorial waters against trafficking of illegal drugs andclandestine immigration’

‘Anti-narcotics patrols and roadblocks in operations coordinated by the PoliceForces’

‘Explosive ordinance disposal

‘Operations aimed at preventing acts of terrorism or their consequences’

‘Participation in activities for combating terrorism, in accordance with nationallegislation’

‘Participation in actions to prevent proliferation of conventional arms andweapons of mass destruction in accordance with international agreements thecountry adhered to’153

151 Individual Reports mentioned that these were partly ‘secondary roles’ of the armedforces.

152 The respective report explains that the national service of a specialised policestructure within the Ministry of the Interior has operational and investigative func-tions, established in order to ‘combat the criminal actions of local and trans-bordercriminal structures.’.

153 The respective report explains that the armed forces ‘take part in these missionsin accordance with the cooperation plans established by the central and local author-ities’. Furthermore it is stated that the ‘participation in crisis and emergency missionsoutside the country is subject to the approval of the competent national authorities.’.


G) Border Control:154

‘Protection of the national borders’

‘Protecting the border of the country’

H) Safeguarding Public Order and Law Enforcement:

‘Protection of law and order’

‘Law enforcement’

‘Protection of strategic national sites’

‘(Provision of) military support of law enforcement agencies’

2.1.4.2 Paramilitary and Security Forces

As with the reporting on items 4b of the Questionnaire, a majority of theparticipating states reported under item 5b that they did not maintain para-military forces (or special security forces) and, accordingly, could not exchangeinformation on such force categories.155 This may also reflect the non-officialuse of the term paramilitary forces. There are apparently different militarytraditions with regard to the regulations in peacetime and in times of war and

154 It is not always explicitly mentioned that a specialised Border Guard Force per-formed this function.

155 The handbook for parliamentarians on parliamentary oversight over the securitysector, however, notes: “in a number of situations, other state military organisationsOSMOs (than the regular military) have been known to apply inappropriatelymilitary techniques to civilian policing activities and/or be responsible for serioushuman rights abuses. As the use of OSMOs can blur the distinction between civilianpolice and military forces, it is important that their role and position be well defined.It is preferable to exclude their participation in conducting internal security opera-tions. Parliament should adopt appropriate legislation to this end and oversee actionby the government. The president or prime minister has to allow parliamentaryoversight of OSMOs, not only because by law any force which is funded by thestate must be overseen by the parliament, but also because of the challenges andpotential dangers of their wide and unchecked use.” parliamentary Oversight ofthe Security Sector; Principles, Mechanisms, Practices (Handbook for parliamentar-ians, No. 5 – 2003). DCAF, IPU, Geneva 2003, p. 58.

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emergency. One country reported within 5b that in times of war or emergencysituations, ‘also other military formations, subordinated to the ministry ofdefence and some of the armed formations, subordinated to the Ministry of theInterior, will be included in the national armed forces’. The same report addedthat in that case, the Defence Law provided for civilian control.

Indeed, the reporting on item 4b and particularly 5b has shown that onegroup of countries tends to perceive paramilitary forces as irregular or evenillegal organisations. One of the reports underlined that ‘the organisation ofmilitary and paramilitary activities outside a state authority is prohibited’ orthat ’it is forbidden to organise military or paramilitary activities except understate authorities’.

Another reason for the confusion may be that there are conceptual overlapsbetween paramilitary (items 4b/5b) and (internal) security forces (items 4c/5c).For instance, one country reported the security forces aimed at maintaininginternal stability in the country, while this information was noted both under5b and 5c. Individual reports even referred to the roles and missions of suchforces in special areas of the national territory, areas that are also calledsensitive areas.156 Moreover, certain paramilitary or (internal) security forcesare apparently associated with government services, and apparently do not havea close or internal organisational connection with the armed forces. Certainreports mentioned that the government fully controls respective forces at alltimes.

As with the reporting on item 4b, one group of participating states expresslyputs the border guards under the category of paramilitary forces. One reportexplained that the country’s frontier guards may be wholly or partly combinedwith the Defence Forces by statute under the framework of defence prepared-ness, and mentioned two basic roles and missions:

156 According to one NATO country, paramilitary and security forces must also beseen in the context of: “(missions) … in vast and sparsely populated rural areas,this, having to deal with an elderly population; in addition, dedication of part ofthe forces time to crimes against children and victims of violence, being nowadaysdeeply involved in the implementation of the three projects launched by the Ministryof Internal Affairs: domestic violence, safe schools and safety of elderly people”.


Maintaining public order and safety in addition to policing the border and seaareas and carrying out passport control as well as Customs control in placeswhere no Customs authorities are present

Participating in the defence of the country

Other countries put the National Republican Guard under the category ofparamilitary forces. According to respective reports, the roles and missions ofthe Republican Guard are:

Guaranteeing, within the area circumscribed to them, the maintenance of thepublic order, by ensuring the rights, freedom and welfare of the citizens

To maintain and protect citizens and public, private and co-operative property, bydetecting or punishing illicit acts performed against them

Upon the request of the judicial authorities, to conduct the investigations they areinvolved in, as a criminal police force

To be responsible for law enforcement and its regulation in general, specificallythose concerning traffic and transportation

To fight against physical infractions, particularly, those regulated by Customs andLaw; cooperate in the control of the entry and exit of national and foreigncitizens to and from national territory

Helping and protecting citizens and defending and preserving individual propertyconsidered endangered by human or nature actions

Cooperating in guards of honour

Cooperating in the execution of national defence policy

In addition the performance of regular and permanent police duties throughout thecountry, namely in areas considered of high risk and through contact with thepopulation, including criminal police functions

Certain countries reported on the national tradition of civic organisedparamilitary institutions with official working relations with the national minis-tries of defence. These non-governmental organisations support the defence

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education of the population, especially the younger generation.157 Furthermore,the ministry of defence cooperates with the Federation of Associations ofReservists and Veterans of the armed forces, 18 affiliated organisations, whichare represented also in both the Inter-allied Confederation of Reserve Officers(CIOR) and the European Association of Non-Commissioned Reserve Officers(AESOR).

As with item 5b (paramilitary forces), the participating states tended tounderscore under 5c that they did not maintain special (internal) security forcesdistinct from the public police forces. Furthermore, one group of countriesperceives the ’security forces’ as consistent with 5b. However, some countrieshave reported on the roles and missions of special categories of security forces,like for instance the National Republican Guard. One NATO country reportedthat the Republican Guard’s Disciplinary Rule is ‘generically similar’ to thePublic Security Police Disciplinary Rule, and that the relevant DirectorateGeneral of Internal Investigation of ‘each police force (and/or) security forces’prosecutes behaviour violating human rights standards.

Many of the participating states apparently do not have regular paramilitaryand (internal) security forces. However, individual countries referring to specialunits and bodies in charge of interior affairs thus indicated the existence ofsuch forces.158 Few countries mentioned special services for the protectionof public institutions and individuals. One report referred to the Security Servicesof the parliament and the state President, as well as the Military Counter-Intelligence Service, explaining that both services are components of the nationalarmed forces. Yet another participating state distinguished no fewer then fivenational services under 5c: Security; Police; Border Police; Combat ofOrganised Crime; Gendarmerie.

157 According to one new NATO country, the ministry of defence cooperates with nofewer than: “… 141 non-governmental organisations in generating and retainingpublic support for the armed forces and national defence, encouraging ex-servicemento join in relevant voluntary projects, with particular attention being paid to fosteringpatriotic and pro-national-defence attitudes among young people.”

158 “The Law on Defence stipulates that the preparation of citizens for armed struggleis carried out in the units and institutions of the Federal Army, as well as in theunits and bodies in charge of interior affairs. In the case of an immediate threatof war, state of war or a state of emergency, the units and bodies in charge ofinterior affairs may be engaged for combat duties, i.e. for armed struggle or armedresistance. In carrying out their combat duties, these units and bodies shall besubordinated to an officer of the Federal Army, who is in command of combatoperations.”


One country provided a comprehensive list of roles and missions of theso-called Public Security Police:159

Promoting the protection that ensures the normal functioning of democratic insti-tutions, as well as the rights and personal liberties and respect for the publichealth, safety, morals or welfare of the citizens

Ensuring the maintenance of order, public safety and tranquillity

Preventing organised criminality and further acts against the law and its regula-tions

Preventing organised criminality and terrorism, in coordination with other forcesand security agencies

Ensuring execution of administrative acts, when enacted by competent authoritiesand directed at preventing infringements of the law or its continued violation

Ensuring protection of persons and of their assets

Performing the duties assigned to them by the Ministry of Justice

Ensuring road safety, through control, patrol and regulation of traffic

Ensuring safety during sport shows or similar events

Performing the duties assigned to them by law in terms of administrative licens-ing

Participating in port, river and maritime surveillance in accordance with the con-ditions and terms as foreseen by the law

Guaranteeing the protection of railway areas

Helping people and giving assistance to injured people and support, in particular,to groups considered at high risk

Participating in international missions under the terms defined by the government;cooperating with other investigation agencies with identical purposes

Contributing to training and informing citizens in matters of safety

159 Established as a criminal force, acting under the control of the competent judicialauthority, as set forth in the Penal Prosecuting Code.

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The same country also reported on new roles and missions (attributed tothis ’Public Forces Police’) with regard to the performance of specific dutiesin the domain of the prevention of terrorist activities:

Controlling the manufacture, storage, commercialisation, use and transport of rawincendiary material, ammunition and explosive substances or similar products thatare not the property of the armed forces or of any security forces and securityservices

Ensuring the personal safety of the members of the government and high repres-entatives, both national and foreign, as well as of other citizens in a situation ofthreat

Adopting measures to prevent and repress illicit acts against civilian aircraft,within the framework of the airport security

The reporting on security forces tends to emphasise the responsibilities ofexecutives to meet the requirements faced by combating a new threat. In onecountry, the Council of Ministers has adopted a (new) Security Strategy, whichidentifies the prevention and combat of all forms of threat targeted at nationalsecurity, and states that internal security forces were in charge of meeting thesechallenges. In the same context, the report further mentions a specific Actrelated to the temporary authority of the Minister of Internal Affairs overselected military units.

This information is apparently exchanged in the context of defence reformprocesses and related to the professionalism-efforts within the armed forces.Certain reports even mention recent legal amendments for the liquidation ofmilitary units (within Ministries of the Interior) and the takeover of their tasksby so-called government protection offices. The reporting on item 5 finallyshows a certain trend in some of the participating states towards transformingPublic Security Police-Structures from militarised units (armed and dressedin uniforms) to more civilian structures, but with the same task of protectingpersons, delegations, supreme state bodies, etc.

Finally, there are reform and transformation programmes for security forcesin the case of police and border guard units. EU candidate countries reportedon the adoption of legal amendments to comply with European Union standards.


2.2 Subjection of the Armed Forces to the Norms and Prescriptions ofInternational Humanitarian Law

The second pillar of the OSCE regime on the DCAF is provided by para-graphs 29, 30, 31, 34 and 35 of the Code of Conduct160 and reflected in item8 of the 1998 Questionnaire:

item 8 Instruction on international humanitarian law and other inter-national rules, conventions and commitments governing armedconflict included in military training programmes and regulations.

§ 29 “The participating states will make widely available in their respectivecountries the international humanitarian law of war. They will reflect,in accordance with national practice, their commitments in this field intheir military training programmes and regulations.”

§ 30 “Each participating state will instruct its armed forces personnel ininternational humanitarian law, rules, conventions and commitmentsgoverning armed conflict and will ensure that such personnel are awarethat they are individually accountable under national and internationallaw for their actions.”

However, item 8 refers only to paragraphs 29 and 30 and focuses on theissue of IHL-instruction, which is actually the topic of paragraph 30. Accordingto Victor-Yves Ghebali, the Code of Conduct confirms three basic obligationsof states with regard to international humanitarian law:161 (I) Respecting thecorpus of international humanitarian law in peacetime and wartime (Code,§§ 34, 35); (II) Promoting knowledge of international humanitarian law (Code,§§ 29, 30); (III) Holding all military persons responsible for serious violationsaccountable for their action under national and international law (Code, §§30, 31)

Given the general wording of item 8, the Questionnaire does not addressthe second pillar of the OSCE-Regime on DCAF. For instance, it does notrequest specific information on concrete provisions and measures to respectIHL apart from instruction programmes. Nor is the issue of individualaccountability subject to the Questionnaire. Accordingly, the participating states

160 See chapter 1.4.2.161 Victor-Yves Ghebali: Revisiting the OSCE Code of Conduct on Politico-Military

Aspects of Security (1994), Draft Working Paper, DCAF, Geneva 2003, pp. 9-11.

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have exchanged direct information only with regard to the second obligationto promote knowledge of international humanitarian law.

Indirectly, some of the participating states have nevertheless also exchangedinformation on other measures taken for the respect of the norms and pre-scriptions of IHL. It was emphasised that the issue of IHL is of great importanceto the armed forces. Some of the participating states have provided specificinformation on the special roles played by legal advisers. Finally, it appearsthat direct reference to the Code’s implementation has been made almostexclusively within item 8 and in connection with the issue of IHL. However,most of the participating states focused their information on the regular militaryand did not submit information on the instruction of personnel belonging toother forces and services of the security sector.162 Finally, while a majorityof countries submitted information on the instruction of officers, few countriesalso referred to respective training programmes for conscripts.

In general, the participating states have submitted information on what theydo to respect international humanitarian law and how they promote generalknowledge on the issue. However, while the reporting was largely focused ontechnical issues related to instruction and training, virtually no information wasexchanged on the regulation of the individual accountability of armed forcespersonnel.163 This chapter therefore evaluates information related to the firstand the second above-mentioned obligations of states with regard to inter-national humanitarian law.

162 The Code is aimed at servicemen of all security sector organisations. Furthermore,next to the respect of IHL, the Code also establishes norms for the respect by theservicemen of human rights principles, as well as principles of legality, democracyand neutrality of armed forces, covering issues that have hitherto been consideredas falling in the domestic jurisdiction of the state. Since the adoption of the Code,the participating states have continued to recruit, educate, and train, command andprofessionalise their troops in accordance with the principle of democratic controlof armed forces. Parliamentary Oversight of the Security Sector; Principles, Mechan-isms, Practices (Handbook for parliamentarians, No. 5 – 2003). DCAF, IPU, Geneva2003, pp. 155-156.

163 Individual participating states, however, reported that the principles related to theindividual accountability of armed forces personnel has been included in trainingmanuals and instruction programmes.


2.2.1 Respect of IHL in Peacetime and Wartime

Many of the participating states place great importance on the applicationof international humanitarian law, which is generally perceived as highly topical,including in the framework of the current war against terrorism. Individualcountries have explained that – despite new challenges and changing securitycircumstances – human rights principles must be scrupulously applied, andprogrammes must be instituted to assure observance of the Law of War by ‘allparticipating members of the armed forces’.

With Reference to paragraph 34 of the Code of Conduct, some countriesprovided a status report with regard to the Geneva Conventions, but also oninternational conventions on the suppression of weapons of mass destruction,as well as the Ottawa Convention on anti-personnel land mines. Reference wasalso made with regard to international agreements on cultural protection164

and with regard to the Convention on the use of certain conventionalweapons.165

Instruction and training in International Humanitarian Law (IHL) is carriedout on national and international levels. Military officers attend internationalcourses on IHL matters and are regularly sent to the San Remo InternationalInstitute of Humanitarian Law. At domestic levels, special courses are organised,including the invitation of international lecturers. Many of the participatingstates have cooperation agreements with even their National Red Crossorganisation or the International Committee of the Red Cross. Additionallyinstruction in IHL is also organised at specialised Internal Leadership Centres.

A special effort has been made in recent years to train soldiers and unitsassigned to participate in peacekeeping and humanitarian operations in therules of the Law of Armed Conflict that are particularly applicable to suchmissions. Refresher training is carried out for personnel assigned to UN, NATOand OSCE peace (support) operations before they are deployed.

164 Paragraph 34 of the Code of Conduct refers to the 1949 Geneva Conventions andProtocols Additional thereto, as well as to The Hague Conventions of 1907 and1954.

165 Paragraph 34 of the Code of Conduct also refers to the 1980 Convention on theUse of Certain Conventional Weapons. Individual countries reported on the existenceof special national directives, which provide that all employees of the armed forcesshould additionally be familiarised with the obligations contained in the 1999 ViennaDocument, the Code of Conduct, the Treaty on Conventional Armed Forces inEurope (CFE), including related obligations of foreign inspectors monitoring compli-ance with these documents.

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The need for increasing the awareness of IHL standards was particularlyunderscored with regard to human rights standards, which can occupy animportant place in missions abroad. This is particularly relevant for peacekeepersdeployed in countries with specific cultures and traditions. It is thereforeimportant that troops deployed in missions outside the national territory receiveadditional instruction, e.g. through historical and cultural lectures in view ofthe strengthening of the perception and respect for the customs of the locals,including indigenous populations. Some countries prepare and disseminatespecial Peacekeeping Operations and Humanitarian Intervention Handbooksand appropriate handbooks for the specific countries where forces are deployed.For each mission, ad hoc working groups can be put together to carry out thiswork.

NATO members reported on the coordination of training standards in orderto ensure that all participating nations have similar rules and standards. Suchtraining is also practised in multilateral training exercises including the Partner-ship for Peace programmes. Rules of engagement and operations plans areregularly reviewed both by national and NATO attorneys to ensure compliancewith the international Law of Armed Conflict.

National armed forces also include the Code of Conduct in the orientationtraining of a force to be sent on a peace support mission. Special training isprovided for reserve staff who have already done their military service andapplied to serve in a peace support mission, as well as for conscripts who havevoluntarily applied to perform their military service in Rapid Deployment Forcesand who are also willing to serve in peace support operations after their militaryservice. In both cases, special situations faced by peacekeepers during theirmission are taken into account within respective training and instruction pro-grammes.

Finally, special training is organised for the preparation of Military LegalAdvisers who are specialists assisting and advising Commanders in the applica-tion of national and international provisions of Humanitarian Law. They takepart in sensitising and diffusing IHL issues in parent Services and in instructingLaw of Armed Conflict (LOAC) within the armed forces. This is particularlyrelevant for crisis management and international peace support operations.


Finally, legal advisers are involved in the planning processes of the armedforces at all levels from strategic planning to tactical and technical levels.166

In some countries, legal advisers are civilian officials subordinated to aPrincipal Legal Adviser and work either in the Defence Staff or in variousheadquarters on command or military province level in all parts of the country.These advisers have a status similar to any other civil servant of government,while during crisis and wartime the number of legal advisers is five to 10 timesthe number during peacetime. Moreover, the legal advisers are regular lawyersfrom every sector of society and part of the reserve of the defence forces, andall peacetime legal advisers can be contacted through the legal division of theDefence Staff.

2.2.2 Promotion of Knowledge on IHL

The participating states submitted information related to three aspects ofthe promotion of knowledge on IHL. First, most of the countries reported onspecific training tools and service regulations established, including militarycodes of conduct and codes of professional ethics. Second, some of the estab-lished democracies emphasised the importance of training and education in therights and duties of both superior and subordinate personnel, including thetraining of conscripts. Third, individual reports made a direct connectionbetween the application of IHL and the implementation of the Code of Conduct.

The implementation of a special law of war programmes for all personsentering the armed services will produce a more effective training and dis-semination of IHL. In addition, comprehensive Law of War Manuals are draftedthat will augment separate service publications for training and referencepurposes.

Most of the participating states reported that regulations and training aidsand manuals were available for the instruction of military personnel in IHL,while some countries had joint service regulations and training materials,usually distributed down to company level. Pocket handbooks and easy-to-carrypersonal instruction cards were distributed to each individual soldier. It was

166 One participating state reported that with the recent reorganisation of the DefenceForces and the establishment of the Defence Forces Training Centre, a post of full-time legal officer with specialist training and experience in instruction on human-itarian law had been established. Another country just stated that guidelines for legalaspects of military service were laid down in military regulations.

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emphasised that training materials on Military Law and Regulations and IHLgenerally had to be distributed down to company level. IHL information andtraining tools are also disseminated through special Internet web sites.

Special instruction in National Armed Forces Code of Conducts was men-tioned, setting out the manner in which combat missions must be conducted,including IHL principles like the treatment of prisoners of war, wounded soldiersand civilians during operations, etc. Even the ethics of the military professionwas reported on, including such topics as civic awareness courses, which dealwith the issue of IHL. Furthermore, special leadership Codes and Norms ofIHL were disseminated recently by General Staff Directives.

While many countries reported on respective officers training and educationprogrammes, only a few participating states also exchanged information onconscript training. Special training for non-commissioned officers include topicslike an introduction to the International Law of War with special attention tothe protection of the wounded, sick and shipwrecked, as well as the rights ofprisoners of war, Warfare and protection of the civilian population issues, ArmsAgreement issues.

Some of the participating states emphasise that instruction on IHL is givento all forces personnel, including, inter alia, officers, NCOs, conscripts,reservists and volunteers. Instruction is provided for armed and security forces,including the Gendarmerie. One participating state reported in detail on theinstruction of IHL to both officers and conscripts: see the compiled informationin the table under Annex 7 of Part II of the present book.

Within the reporting on item 8 of the Questionnaire, special attention wasalso given to the Code of Conduct. Indeed, some of the reports have tendedto perceive implementation issues of the Code as directly related to the applica-tion and education of IHL in the armed forces. Subsequently, specific actionsare taken (by the armed forces themselves) to assure the implementation of theCode. In addition, government Ordinances require the armed forces to dis-seminate the OSCE Code of Conduct, and to ensure that armed forces personnelare instructed on the country’s commitments therein.

However, while the implementation of the provisions of the Code of Con-duct go beyond the armed forces (themselves) and the issue of instructing themilitary in the rules and norms of the Law of War and IHL, certain establisheddemocracies indicated that the Code’s provisions must be permanently reviewedand respective training programmes adapted for soldiers of all ranks.

As a final remark, it is worth noting that the participating states’ reportinggenerally lacks information related to the consequences of the individualaccountability of the armed forces personnel. This may be considered an im-


portant shortcoming of the information exchange so far. If the respective pro-visions of the Code under paragraphs 30 and 31 were included more explicitlyin the Questionnaire, this would probably provide a more detailed transmissionof information on the issue.

2.3 Respect of the Human Rights and Fundamental Freedoms of theArmed Forces Personnel

The third pillar of the OSCE regime on the DCAF is provided by paragraphs23, 27, 28, 32, 33 of the Code of Conduct167 and reflected in items 6, 7, and9 of the 1998 Questionnaire:

item 6 Procedures for the recruitment or call-up of personnel for service in the:(a) military; (b) paramilitary; (c) security forces.

item 7 Where applicable, legislation or other relevant documents governingexemptions from, or alternatives to compulsory military service.

item 9 Legal and administrative procedures protecting the rights of all forcespersonnel.

item 6 § 27 “Each participating state will ensure that the recruitment or call-up of personnel for service in its military, paramilitary and secur-ity forces is consistent with its obligations and commitments inrespect of human rights and fundamental freedoms.”

item 7 § 28 “The participating states will reflect in their laws or other relevantdocuments the rights and duties of armed forces personnel. Theywill consider introducing exemptions from or alternatives to mili-tary service.”

item 9 § 33 “Each participating state will provide appropriate legal and admin-istrative procedures to protect the rights of all its forces per-sonnel.”

In a direct way, only item 9 addresses the issue of the protection of indi-vidual rights of all forces personnel. Items 6 and 7 do refer to the issue onlyindirectly: item 6 through the reference to paragraph 27, stipulating that recruit-


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ment or call-up shall be in conformity with human rights and fundamentalfreedoms; item 7 through the reference to paragraph 28, providing for thereflection of the rights and duties of armed forces personnel in national lawsor other relevant documents.

The Questionnaire therefore does not address the issue of the exercise ofthe civil rights of armed forces personnel as provided by paragraph 23 of theCode. Nor does it reflect the provision of basic human rights and fundamentalfreedoms as set down in paragraph 32.

Moreover, the Code of Conduct does not list the rights of armed forcespersonnel. With paragraph 28 the participating states merely agreed to considerthe introduction of exemptions from or alternatives to military service. Thismay also reflect the situation that the basic rights of military personnel in manymember states of the Council of Europe are still seriously limited, and that thereare considerable differences regarding the legal status of conscripts and therights they enjoy.168

In 1998, the Parliamentary Assembly of the Council of Europe identifiedexisting malfunctions and malpractices within the armed forces that were indirect contravention of the obligations of the European Convention on HumanRights (ECHR). These obligations related especially to the following issues:169

Cruel treatment170 ECHR, article 3

Forced labour ECHR, article 4

Fair trial ECHR, articles 5 and 6

Free speech ECHR, article 10

Free association ECHR, article 11

The non-governmental European Council of Conscripts Organisation(ECCO), promoting the idea of the citizen in uniform, follows the social andeconomic conditions of conscripts with particular focus on the situation in

168 Victor-Yves Ghebali, Revisiting the OSCE Code of Conduct, op.cit., pp. 13-14.169 Subsequently, the Assembly adopted Resolution 1166 (1998), which invited the

member states to promote the application of civil and social rights enjoyed byconscripts in peacetime and, as far as possible, in time of war. Ibid., p. 13.

170 This issue refers to the existence of extreme forms of harassment imposed by olderservicemen to new conscripts, for whom the Russian language has created the specialword: dedovshchina. Ibid.


Central and Eastern Europe. Subsequent to the demands of this non-govern-mental organisation, a European Social Charter for Conscripts was adoptedin 1991 (revised in 1996), and its provisions are applicable in peacetime.171

While there is a general tendency in many of the participating states toconvert their armies from a conscription system to a purely professional system,the parliamentary Assembly of the Council of Europe recently turned itsattention to the right to association for the members of the professional staffof the armed forces. Resolution 1572 (2002) considers that the Council ofEurope’s Committee of Ministers should call on the governments of the memberstates (all of which are also OSCE members) to lift the restrictions on the rightto association and to allow members of the armed forces and military personnelto organise themselves in representative associations and to be members of legalpolitical parties. In addition, all appropriate rights should be incorporated inmilitary regulations.172

This chapter follows the main topics reflected in items 6, 7 and 9 of the1998 Questionnaire: recruitment and call-up for service in military, paramilitaryand security forces; exceptions from and alternatives to compulsory militaryservice; protection of the rights of the forces’ personnel.

2.3.1 Recruitment and Call-up for Service in Military, Paramilitary andSecurity Forces

Three major topics have been identified. First, the reporting under item 6shows that a growing number of participating states are in the process oftransforming their conscription armies into fully or partly professionalised armedforces. Second, a number of participating states have reported on compliancewith human rights standards in the area of recruitment and call-up for servicein the armed forces. Third, some countries also submitted specific informationwith regard to paramilitary and security forces.

171 Ibid., p. 14.172 Ibid. Some of the participating states restrict freedom of association; others allow

servicemen to actively participate in professional organisations, while they regulatemembership in political parties; yet others explicitly forbid membership in politicalparties and restrict the right to association; a final group of countries prohibits thesetting up of trade unions and political parties in the armed forces. Ibid. p. 14.

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2.3.1.1 General Trend Toward Professionalism

Compulsory military service is a tradition in many of the participating states.One country stated that Conscription173 was set down for the first time inlegislation by the Constitution in 1849, and some countries have adoptedspecific Military Conscription Acts. While some of the respective Constitutionsstate that military service is the right and duty of every citizen, others evenadd that defending the country is not only a duty but also a right and honourfor the citizens.

One group of countries have recently converted their armies from a con-scription system to a purely professional system. Certain countries explainedthat while the legislation on the (former) militia system was suspended, theauthority for compulsory recruitment still existed. If the military need aroseagain, conscription could be re-instituted and reserve personnel called up.

In other countries that wish to professionalise their armed forces, newlegislation defines the transitory regime for the gradual abolition of compulsorymilitary service and establishes criteria for the transition to an entirely pro-fessional armed forces. This new legislation also establishes that military serviceis compulsory only in exceptional circumstances. Furthermore, new defenceguidelines suggest an appropriate increase of professionals in the armed forces,and new defence development concepts lay out the principles and objectivesof professionalism. Parallel or complementary to this trend is the recent adoptionof new legislation on alternative civilian service to compulsory armed service.

At the same time, new legislation in participating states includes amend-ments regulating a shortening of the length of time of both compulsory militaryand alternative civilian service. One country reported that the length of com-pulsory military service was shortened from 12 months to nine months, whilecivilian service was shortened from 24 to 13 months. Other counties, however,have given no indication as to the shortening of service time. A couple ofparticipating states referred to 24 months for compulsory military service.

Participating states also offer opportunities to conscripts for extra-termmilitary service upon completion of their obligatory service and on a voluntarybasis. For instance, conscripts may volunteer for additional tours of duty of

173 One participating state provided a definition of military compulsory service: it meansthe duty to appear before a draft board and to participate in the necessary physicaland psychological evaluation, the duty to fulfil the obligations as members of the‘militia’ (reserve) and the duty to notify the military authorities of facts with relev-ance to service in the military such as change of residence.


one to four years. Some of the participating states finally reported on per-formance of duty in certain security services.

2.3.1.2 Recruitment, Call-up and Human Rights

The recruitment procedure for military service generally consists of severalstages. One option is the distinction between registration, pre-induction ex-amination and call-up.174 In order to facilitate the registration, evaluation andinduction of persons liable for military service, some countries have dividedtheir national territory into recruitment areas. These areas correspond to theterritories of the national provinces. Special military commands are responsiblefor the recruitment of conscripts for defined recruitment areas. The examinationis carried out by evaluation centres (draft boards), which consist of an officer(superior), a doctor and a psychologist. A person liable for military serviceusually means that he/she is physically and mentally fit as required for militaryservice. The evaluation procedure is terminated with a declaration ‘fit’, ‘unfit’or ‘temporarily unfit’ for military service.

The respect of fundamental freedoms and basic rights has been reflectedwithin the reporting on call-up procedures. Call-up for military service concernsthe conscripts,175 whose general fitness for military service has been estab-lished by the decision fit for military service.176 Persons liable to militaryservice are assigned to the individual units by taking into account their aptitudesand military necessities, including a discussion and choice of military functionat the end of the procedure. In the absence of any military requirement to thecontrary, professional and other certified expert knowledge is taken into account,as well as the place of (private) residence, as requests regarding the place ofduty may be made, as well as the type of force and date of call-up.

It is generally emphasised that soldiers are citizens enjoying the samefundamental rights and freedoms as other citizens. Recruitment and call-upmust therefore be based on the principle of non-discrimination with regard topersonal characteristics such as: ‘race’, ‘colour’, ‘religion’, ‘ethnicity’, ‘gender’,

174 Including physical and psychological aptitude tests.175 The Report further stated that persons called up must have attained the age of 18.

On a voluntary basis, however, this is possible also after having attained the ageof 17.

176 Individual countries reported that physical performance tests are conducted by theFederal Sports School.

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‘language’, ‘political opinion’, ‘national status’, ‘birth’, ‘education’, ‘socialstatus’, ‘marital status’, ‘property’, etc. Some countries additionally signed aninternational convention which acknowledges that no person can be called upfor service within the armed forces before the age of 18.177 Furthermore, newlegislation is adopted by a growing number of participating states to introduceand regulate voluntary armed female military service.

2.3.1.3 Special Information on Paramilitary and Security Forces

Compared to this, less detailed information is exchanged with regard tothe recruitment and call-up of paramilitary and security forces. While certaincountries reported that paramilitary service is voluntary, others clearly statedthat recruitment for service in the paramilitary and security forces is by con-scription (lasting two years in the national armed forces and three-five yearson a contract basis).178 In some of the participating states, compulsory militaryservice may explicitly be performed in armed formations that are not part ofthe armed forces/non-military armed security forces, being equivalent to com-pulsory military service.179

Some of the participating states reported on Border/Frontier/Coast Guards.Individual countries explained that while the members of the security forcesare civilian employees of their department and would not be subject to recruit-ment or call-up, Coast Guards are sometimes the exception. Their membersperform law enforcement duties during their peacetime operations protectingmaritime safety and coastal security. They assume the same legal status asmilitary members of the Department of Defence when the President orders theCoast Guard to operate under the authority of the Department of Navy. Theyare therefore subject to federal call-up. Some EU candidate countries also

177 One country particularly emphasised the protection of human rights with regardto service conditions in general: “No person may be subject to forced labour orservices expect for military or other services in connection with compulsory servicein the armed forces”.

178 Respective countries noted that paramilitary and security service by contract isregulated by the by-laws on the military service of officers and warrant officers,approved by respective resolutions of the Cabinet of Ministers.

179 One participating state also made the following statement: “There is no paramilitaryservice organisation in the country. Citizens aged 16 are only registered on therecruitment books at the mobilisation branches. They are not being called-up fortraining or other purposes.”


reported on national plans for replacing conscription of Border Police staff withprofessional border police officers in conformity with the EU aquis and require-ments.

Other optional branches where compulsory military service can be performedare police and prevention units and the Public Security Police, as well asgovernment protection services, etc. One participating state also reported thatin the framework of a gradual transition to voluntary military service, thegeneral conditions for admission to the National Republican Guard wererecently enlarged. Recruitment is no longer based exclusively on the personnelwho have done compulsory military service. Voluntary military service andwomen are now included. Special training is provided on issues of police ethicsand human rights, immigrants and ethnic minorities.

Selection of draftees assigned to service at paramilitary and security forcesis made on the basis of requirements determined by the specific duties andmissions of those forces and is basically conducted according to the call-upprocedures and institutions following the same procedures as the regular armedforces. Participating states also reported on aspects of service regulations relatingto the duties of servicemen. Servicemen were expected not to take part inpolitical organisations and those which were illegal. Direct commercial activitiesare prohibited while on service. Countries also reported on service employmentcriteria such as: citizenship, political non-involvement, level of studies, andhealth.180

2.3.2 Exemptions from and Alternatives to Compulsory Military Service

The participating states’ reporting under item 7 of the 1998 Questionnairehas shown that a growing number of countries adopt specific legislation regulat-ing conscientious objection, but also exemptions from and alternatives tocompulsory military service.

2.3.2.1 Conscientious Objection

Some countries noted that military conscription had been abolished orsuspended. Consequently, offering alternatives to compulsory military service

180 According to one national report, even social behaviour and letters of recommenda-tion from the last employer are taken into consideration.

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is no longer applicable. Participating states where compulsory military servicestill exists usually referred to the right to refuse military service for reasonsof conscience. Recognised conscientious objectors181 are ‘not liable to militaryservice’, either in wartime or in peacetime. Instead, they are obliged to performcivilian alternative service. Conscientious objectors can perform non-combatantduties in the armed forces, as those who object to all military service can beoffered civilian or social service in the public sector. One country even notedthat individuals whose conscientious objections ‘crystallise’ after they haveentered military service may be ‘honourably discharged administratively’.

However, in some of the participating states, the provision for conscientiousobjection and alternative civilian service does not exist, or has been enactedby amending the legislation only recently. Individual countries reported thatthere were no alternatives to military service, but that exemptions wereregulated. Recent legal amendments in the field of compulsory military servicemay encompass laws on compulsory military service, amendments to thenational defence law and the law on professional military service. Furthermore,ministerial decrees regulate the participation of reservists in military exercisesor the discharge of soldiers upon completion of service and on the call-up,specify the category and number of properties and movable assets which canbe taken possession of by the army for defence-related applications, as wellas the numbers of draftees and reservists who can be called up for service withthe armed forces, including ‘armed units operating outside the military struct-ures’.

One country reported that although new legislation was regulating the so-called substitute civil service, it would be suspended in the near future due tothe forthcoming introduction of all-volunteer armed forces.

One country apparently interested in enhanced Euro-Atlantic cooperationreferred to the Council of Europe, reporting that the new Law on CompulsoryMilitary Service provides for deferment of the service.182

In some cases, the purpose of alternative national defence service shall beto develop citizens and provide them with an opportunity to contribute, indifferent ways, to national defence and the enhancing of national security.

181 One country defined this as: ‘those, who for pacific and religious reasons refuseto bear arms to be recognised as conscientious objectors. Conscientious Objectors,who object to military service can be offered civilian service in the public sector,so-called alternative service (Law on Alternative Service).

182 “Relating to the accession to the Council of Europe the country has an obligationto adopt a Law on Alternative Service within three years of accession.”


2.3.2.2 Exemptions from Compulsory Military Service

Legislation on exemption from compulsory military service is partly includedin special legal Acts concerning compulsory military service like, for instance,Military Conscription Acts. The institutional stages of the decision-makingprocess for military service exemption include exemptions from the duty toundergo an evaluation procedure, exemption from the call-up for militaryservice, and exemption from compulsory military service. Distinguished fromexemption is postponement of basic military service. Alternative Service finallyis the duty to render alternative service (civilian alternative service) for con-scientious objectors. There are different approaches for legally regulatingexemption from (compulsory) military service. However, three main categoriesof exemptions have been mentioned: ‘permanently exempted’, ‘temporarilyexempted’, or just ‘exempted’.

‘Permanently exempted’ are persons who are even (severely) disabled ordeclared ‘unfit for military service’. Some countries mentioned in additioncitizens with (considerable) criminal records. Also persons with a specific(civilian) professional status such as priests, as well as active members of thepolice or fire brigades, etc.

Persons liable to military service are ‘temporarily exempted’ if they are:

Declared ‘temporarily unfit’ (for health reasons), or lacking other necessaryphysical, psychological, vocational or functional eligibility

In particular family situations, such as having a disabled family member or lack-ing the means of subsistence for the family in case of recruitment, or for whommilitary service would mean particular hardship on personal, and particulardomestic, economic or professional grounds; who are ‘preparing for the priest-hood’

Imprisoned or detained in a hospital for mentally disordered people, or undersuspicion of having committed criminal acts or who are a threat to the militaryorder or to the reputation of the armed forces

Committed to performing at least two years of service in development assistance

In addition, ‘exempted for the duration of their tenure or employment’ arecitizens who are in charge of civilian responsibilities in which there is a ‘prevail-ing public interest’:

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The Clergy, unless these persons serve voluntarily as chaplains in the armedforces

Personnel of rescue services, fire brigades and police, Border Guards, postal staffand ‘staff of transportation companies with a federal concession’

Personnel indispensable for the functioning of health services

Those parts of the administration who, ‘in extraordinary situations, are respons-ible for general defence’

Members of the government or candidates nominated for election to the NationalAssembly, Provincial parliaments, European parliament

Persons engaged in particularly important business management positions

Persons with special merit in national or international scientific, artistic orcultural activities

In general, participating states have reported that in their countries thefollowing categories of persons are (generally) exempted from military service:

Recognised conscientious objectors

Registered Jehovah’s Witnesses (in some countries, these persons have the rightto get deferment and finally be exempted from peacetime service at the age of 20,since a special application for deferment and the final exemption are required)

Persons with dual citizenship (some countries reported that somebody who hasbeen granted national citizenship under the age of 30 is basically required toperform military service. But if he has performed it in his second or previouscountry of citizenship he can be exempted totally or partly from peacetimemilitary service in the country. In addition, exempted are male citizens with dualcitizenship if they live permanently abroad, have no family in or connections tothe country, have no property in the country and will receive no legacy from thecountry. In such cases, applications for exemption are required. Furthermore,multilateral and bilateral agreements exist between OSCE countries concerningnational military service for those who have citizenship in the countries referredto in the agreement. According to these agreements, a person with dual citizen-ship in the countries in question is liable for military service only in that countrywhere he has his permanent residence)

Residents registered in specific areas of the national territory. In some cases thesepersons have the right not to complete military service even without the need fora special application


Sentenced or imprisoned citizens. However, there are reports noting that citizenssentenced to imprisonment because of ‘incautiously committed crimes’ couldaddress the respective Supreme Conscription Committee for permission to carryout compulsory military service

Persons liable to military service who pay a certain amount of money required forthe establishment of professional soldiers

2.3.2.3 Alternative Civilian Service

There are manifold alternatives to conscript military service. Alternativecivilian service may be performed in the following public sectors and institu-tions (public institutions, state or municipal institutions and ‘budget-fundedorganisations’), such as: 1) Security and Military Economic Sector; 2) Economicand Environmental Sector; 3) Social and Sanitarian Assistance; 4) Education,Culture and Development; 5) Public Construction; 6) Churches.

1) Security and Military Economic Sector:

Armed Forces

Units and institutions of the Federal Army and the ministry of defence

Military Economic Organisations

Civil protection institutions/structures

Police Forces

Fire Brigades

2) Economic and Environmental Sector:

State companies

Environmental protection/ defence

Agriculture and forestry

Protection and enhancement of forests

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Regulation of waterways

Trade companies.183

3) Social and Sanitarian Assistance:

Social care organisations

Public health institutions

4) Education, Culture and Development:

Public Education

Cultural promotion

Safeguard and fruition of the artistic heritage

Developmental Cooperation

5) Public Construction:

Roads and railways construction

Industrial and municipal construction

6) Churches:

Churches registered by the state

Prohibited Areas for the Performance of Alternative Service are:

Political parties

Corporations, Associations and other Non-profit organisations

183 In some countries, this area is prohibited for the performance of alternative civilianservice (see below).


Trade unions

Trade companies184

In some of the participating states, the areas for performing alternativecivilian service are regularly determined by the Council of Ministers so thatthe alternative civilian service shall be performed in such a way as not tocompete with the labour market. According to other reports, specific laws onnon-military, alternative labour service regulate non-military alternative labourservice. In certain countries, there are also specific regulations according towhich the employer of persons performing alternative civilian service transfers30% of the net salary to the state budget.

In most of the cases, alternative civilian service usually lasts longer thanrespective compulsory military service. There are cases where it lasts 1.5 timeslonger. One country stated that in the first four years since its introduction, 1.5percent of people liable to military service were registered to perform alternativecivilian service. In other countries, however, compulsory military and alternativecivilian service is of equal duration lasting, for instance, seven months. Therewere also countries that reported that alternative service lasts twice as long (24months) for conscripts than for so-called reduced term conscripts (12 months),without indicating the reasons for such distinctions.

Finally, the terminology used in the reporting on item 7 of the Questionnaireshows that the national frameworks apparently perceive the issue of alternativecivilian service in distinct ways. Officially used notions are summarised in thefollowing list:

‘Alternative Service’

‘Alternative National Defence Service’

‘Military Service Served as a Civilian Duty’

‘Substitute Civil Service’

‘Alternative Civilian Service’

‘Civilian Alternative Service (CAS)’

‘Alternatives (to compulsory military service)’

184 In certain countries, this area is not prohibited for the performance of alternativecivilian service.

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‘Community Service’

‘Alternative Utilitarian Service’

‘Alternative Technical Service’ (ATS)’

‘(Non-Military) Alternative Labour Service’

2.3.3 Protection of the Rights of Forces Personnel

The participating states’ reporting under item 9 of the 1998 Questionnaireshows three major trends. First, a number of countries have emphasised theclose relationship between ‘rights and duties’ of the servicemen and personnel.This aspect partly reflects the specific professional status of the military insociety.185 Second, and subsequent to the principle of political neutrality ofthe armed forces, the participating states have also referred to certain legalrestrictions in the area of the exercise of political and civic rights. Third, someof the participating states have emphasised that the individual serviceman isa citizen like others and accordingly may exercise all basic civic rights andpolitical freedoms. Accordingly, they have identified specific procedures andinstitutions that protect the individual rights of all forces’ personnel, includingthose of conscripts.

185 The issue of the protection and exercise of the servicemen’s rights is also relatedto the question of the military’s integration with civil society (paragraph 20 of theCode stipulates that this integration is an important expression of democracy).Military sociologists have attributed to the military a ‘unique’ institutional characterdue to their connection with the means of legitimate violence and the unlimitedliability of their contract of deployment. Departing from the thesis of the military’suniqueness, two fundamental challenges of civil-military relations arise. The firstchallenge is how the military and society deal with the inherent tensions emanatingfrom the need to keep the armed forces apart from society with a distinct organisa-tional structure, culture and ethos in order to carry out its task to protect society.However, at the same time the military must also reflect the civilian norms andvalues of society. The second challenge is to reconcile the armed forces’ monopolyand use of coercive force in order to ‘serve legitimate democratically determinedends without prejudicing the professional autonomy the military needs to performits job effectively.’ Christopher Dandeker: The military in democratic societies:new times and new patterns of civil-military relations. Jürgen Kuhlmann, JeanCallaghan (editors): Military and Society in 21st Century Europe. Münster, Hamburg,London 2000. p. 29; p. 35.


2.3.3.1 Civilian and Military Court Systems

The reporting under item 9 has partly reflected the provision of paragraph20 of the Code related to the armed forces integration into civil society as animportant expression of democracy. The personnel’s rights and duties appearto be sensitive issues in many of the participating states. Countries in transitionto partly or fully professionalised personnel systems amended relevant legislationregulating the status of professional personnel, and also adopted new acts relatedto civil servants.186

Some national reports even brought the issue of the protection of the per-sonnel’s rights into a direct connection with the principle of democratic controlof the armed forces. Legal protection of servicemen is provided through militarystatutes, military codes of justice, military disciplinary rules, as well as speciallaws on military service. Such regulations are generally perceived as importantelements of the armed forces’ internal control, one report noted in thisrespect.187

Some participating states mention that their military officers and non-com-missioned officers claim specific rights in addition to those they enjoyed ascitizens, and that these rights were protected by specific legislation. Relevant‘rights and privileges’ within the status of professional personnel and careerservicemen often related to immunity issues and special protection in specialareas like dismissals, decommissioning and the taking away of a military rank,as well as life and health. These issues are often subject to special legal controland judicial arbitrage, as officers often enjoy special rights of court protection.Similar immunity and special protection is often provided also for personnelserving at ministries of the interior.

Armed forces employees, volunteers or persons subject to compulsorynational service duty, who have been convicted of a violation under criminallaw, or charged with a disciplinary punishment, have the right to appeal.Military justice systems consisting of military courts and military prosecution

186 Some reports also mentioned that officers assigned to administrative posts in theministry of defence and ministry of interior, acquire the status of civil servants andtherefore enjoy a new professional status, particularly with regard to financial andsocial aspects of service, including family issues.

187 “Democratic political control is exercised through a set of appropriate legislativedocuments. Based on these legal frameworks, it became possible to implement anumber of mechanisms to ensure the democratic political control of the armedforces”.

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are still common in many of the OSCE member states. In a growing numberof countries, however, existing martial law is being transformed into civilianordinary law systems or has been abolished recently. In countries with nomartial court systems, appeals are presented to civilian courts of law.188

Moreover, some of the participating states reported that the militarydisciplinary rules are almost entirely based upon civil law and do not infringeupon the civil rights of the military personnel. The constitution and the legalprovisions decree that all members of the armed forces are generally holdersof civic rights to the same extent as any other citizen, and that legal and admin-istrative procedures protecting the rights of personnel are principally based onlaw. Protection of personnel in regular employment is very much the same aswith all state civil servants. In some countries, detailed rules are prescribedin so-called ‘state Civil Servant Act’.

Another group of participating states reported that their respective nationallegal systems were in transition into a single civilian courts system. One countrystated that the minister of defence had set up a group of experts with the taskof revising military legislation, and that military cases were tried before theregular (civilian) courts. Another country outlined the same aspects in theframework of the general transformation of the armed forces into a voluntaryservice institution. New legislation regulates, on the one hand, the status ofarmed forces personnel, and on the other that the national criminal code doesnot differentiate between armed forces personnel and the civilian population.While exceptions are made with respect to disciplinary matters in service, somecountries have distinguished between the national criminal code and so-called‘Military Legal Procedures Acts’. Although military legislation is generallyapplicable in the case of disciplinary procedures, in some of the participatingstates criminal cases are exclusively dealt with by civilian courts.

Individual countries reported on procedures and mechanisms of civiliancontrol and independent civilian review of the military justice system. Respectivereports mention that so-called ‘Uniform Codes of Military Justice’ provideprocedural guarantees for courts-martial that are similar to the rights enjoyedby defendants in the civilian criminal courts. In some respect, these proceduralguarantees even exceed civilian standards (eg counsel are provided without costfor both trial and appellate proceedings). Moreover, the courts-martial system

188 Individual countries used the concept of the citizen in uniform to explain this legalaspect of civil-military relations: “… no soldier, whether doing compulsory militaryservice or serving voluntarily, functions in a legal vacuum. In principle, membersof the armed forces have the same civic rights as any other citizens.”


has an appellate system, which allows those convicted of serious offences toappeal their cases to a federal court of appeals for the armed forces.189

2.3.3.2 Restrictions in the Field of Civic Rights and Political Freedoms

Basically, the legal status of the armed forces’ personnel does not differfrom their legal status as ordinary civilian citizens. However, the rights andduties of the military are not only provided by the constitution and cor-responding legal regulations, but also by the professional status of the military.In reality, the status of the military differs to some extent from that of ordinarycitizens and other civilian personnel of the state administration. Certainrestrictions exist for the military in the area of civic rights and political free-doms.

Another specific aspect of legal issues of democratic control is the politicalneutrality of the armed forces as an institution. Subsequently, the participatingstates mentioned certain restrictions and limitations with regard to the politicalrights of armed forces personnel. For instance, differences between personnelemployed by the defence forces and other state civil servants are that defencepersonnel can be transferred to other offices without their consent. But firstof all, there are certain restrictions on the political activities of military per-sonnel, since in many cases one cannot be a member of a political party or beput up as a candidate for parliamentary elections. ‘Military Service Acts’prohibit the armed forces from any partisan political activity or utilisation. Theparticipating states used different formulations to describe their respectivesituations:

During time/hours on duty190

While in uniform

Within the area of national service

189 One country noted that the federal court of appeals for the armed forces is composedof civilian members appointed by the President. In addition, the federal supremecourt may also review convictions by courts-martial to ensure that defendants werenot denied any constitutional right and that the proceedings were not contrary tolaw.

190 Including the related ban on any public partisan political activities.

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During military operations in times of war

During peace support operations

Duty to preserve official confidentiality and military secrets

Duties as provided for by laws and ordinances specifically necessitated by thepeculiarities of a military service operation

Extraordinary demands on persons doing military service

To the extent necessary for the conduct of the servicemen’s duties

To ensure military obedience and the objectives of the service

The supremacy of civilian political power over military power is particularlymanifested through the restrictions in the field of the active exercise of politicalparticipatory rights. A serviceman shall not be a member of any trade union,and shall terminate his membership and activity in a political party ororganisation upon being admitted to the mandatory initial or professionalmilitary service for the entire period of service. Professional personnel canexercise the right to vote but may not engage in specific political and labouractivities. Restrictions are often with regard to active participation in politicalparties, public meetings, and demonstrations organised by political organisations.Servicemen may neither support any political party or political organisation,and shall not disseminate political statements, articles or speeches in whichthe serviceman publicly disagrees with the elected public authorities, includingparliament, the President, and the government. One group of countries thereforetended more to underscore the legal restrictions on basic and civic rights.

The participating states provided information on the following areas ofrestrictions of rights: (a) Restrictions on the Exercise of Political Rights; (b)Restrictions on the Exercise of Syndicate Rights; (c) Restrictions on Freedomof Assembly and Expression; (d) Restrictions on Freedom of Movement andProtection of Privacy. Examples of specific restrictions are:

(a) Restrictions on the Exercise of Political Rights:

Membership in political parties or organisations

Promoting the aims and objectives of a political party or election campaign


(b) Restrictions on the Exercise of Syndicate Rights:

Right to strike

Establishing trade unions

(c) Restrictions on Freedom of Assembly and Expression:

Organising meetings and rallies on military premises

Taking part in public meetings, manifestations or demonstrations

Freedom to participate in associations

Freedom of expression

Freedom of Opinion

Dissemination of Information

Freedom of Collective/Group Petitions

(d) Restrictions on the Freedom of Movement and Protection of Privacy:

Guarantee on place of service

Choice of residence and free migration

Inviolability of the official (service) apartment

‘Free choice of medical care’

2.3.3.3 Procedures and Institutions Ensuring the Exercise of the Per-sonnel’s Individual Rights

The participating states reported on the exercise of individual rights relatedto at least six different areas: (1) Exercise of political rights; (2) Exercise ofthe right of complaints and legal assistance; (3) Exercise of the right of In-formation; (4) Exercise of the right to Military Insurance; (5) Protection ofthe individual personnel’s personality; (6) Freedom of thought, religion, andconscience.

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(1) Exercise of political rights:

Participation in political parties and other political organisations

Vote in elections on the same basis as other citizens

(2) Exercise of the right of complaints and legal assistance:

Proceedings protecting the individual against the abuse of power by an adminis-trative or military superior

(3) Exercise of the right of information:

Right to regular information on security and military policy issues

(4) Exercise of the right to military insurance:

Free contribution from military insurance in the event of accident or illnessduring service

Right of military pay, board and lodging

No postal charges during service

Free public transportation

Exemption from Debt Prosecution and Bankruptcy

Compensation of loss of income: right of compensation for loss of income due tomilitary service

(5) Protection of the serviceman’s privacy and individuality:

Greatest possible preservation of the private sphere

Safeguard of the serviceman’s individual and personality


(6) Freedom of thought, religion, and conscience:

Free exercise of Religion

Freedom of confession

Right to pastoral, medical, psychological and social advice and support

Right to counselling and care

The information exchanged on the procedures and institutions ensuring theexercise of all forces’ personnel rights encompass three main aspects: complaintand appeal procedures; investigating institutions and legal assistance services;representative institutions of the armed forces personnel.

Complaint and appeal procedures often relate to legal disputes concerningthe professional status and disciplinary responsibilities of servicemen. In somecountries, such disputes are settled by district administrative courts and supremeadministrative courts. According to the reports of established democracies,servicemen enjoy specific means and proceedings for dealing with penal cases,as laid down in constitutional law, the defence law, government decrees, serviceregulations, penal disciplinary codes, penal military laws, and military penalproceedings.191 Furthermore, the armed forces personnel enjoy additional pro-cedural instruments for the protection of their individual rights, such as appeals,complaints, reports, petitions, requests, remonstrance, etc.

In some countries, appeals may be submitted not only to the administrativecourts, independent administrative tribunals or even the constitutional court,but also to special appeals commissions at the ministry of defence. Complaintsoften relate to disciplinary matters and are of a regular or extraordinary

191 One participating state emphasised that the military personnel and civilian officialsand employees of the ministry of defence have equal rights with all other citizensof the Republic. Basic Constitutional Principles like the right to appeal againstindividual legal acts or the right to submit petitions, complaints, and proposals andreceive a response from authorised bodies provide the fundamental framework inthe establishment of a legal framework (Defence Law, Law on Service in the armedforces, etc) and regulations, including the directives guiding the implementationof these regulations. In accordance with the Code of the Armed Forces, the personnelhave the right to submit oral and written complaints to their superiors in protectingtheir rights. Appeals against MoD decisions may be filed with corresponding courts.Legal provisions also allow for the possibility of holding oral hearings with bindingdecisions under the jurisdiction of the National Administrative Court.

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character. In some countries, complaints may also be preceded by a personaltalk or confidential hearing with the commanding officer. Moreover, some ofthe participating states have established special ombudsman’s boards dealingwith complaints against assessment of issues such as military fitness, recognitionof verdicts on service postponements, dispensations from active service, methodsfor ensuring the discipline of troops, etc.192

At special complaints boards infringements may be appealed both informallyand formally through the chain of command, since a correct interpretation offacts or rules by a higher level of expertise may redress the situation. Formalcomplaints boards exist in various areas such as personnel management andnotably in the requisition regime combining both military and civil expertise.Infringements may also be pursued through the civil courts.

According to one newly-admitted NATO country, two systems are estab-lished in the ministry of defence for the protection of the rights of professionalpersonnel. The first one relates to the legal possibility for military and civilianpersonnel to address reports and written requests, petitions or complaints upto the level of the leadership of the armed forces, as well as to the other stateauthorities. The second system has been established to manage (what the reportcalls) ‘social problems in the armed forces’. The system aims at identifyingdysfunctional social situations and the steps to be taken for diminishing oreliminating them.

Amongst the investigating institutions and legal assistance services, in-spector generals of the armed forces occupy the predominant place. Inspectorgenerals often have far- reaching powers of investigation and action necessaryto eliminate violations. One of the emerging democracies underlined that thehuman dignity of every serviceman must be respected, and a serviceman shallnot experience humiliation. Furthermore, any person serving in the armed forcesshall not be compelled to serve any other person of a group of persons otherthan those conducting his official duties. Even another participating stateexplained that according to federal statutes, the right of military members tofile complaints is guaranteed at two levels of inspector generals: with theinspector general of their military service and with the inspector general ofthe department of defence.

One established democracy emphasised, that basically every member ofthe armed forces is allowed to communicate freely with members of parliament.Others referred to the predominant role played by the Ombudsman of the armed

192 Including problems related to so-called minor insults.


forces and emphasised that this was an independent investigating institution.193

One established democracy explained that the latter provides for particular legalprotection. For instance, decisions and advice given to the chain of commandby the armed forces’ ombudsman usually result in changing the chain of com-mand’s decisions and establishing precedents for future decisions. The nationalreport also underscored that there was no difference between officers and otherranks with regard to the application of redress.

Individual countries also reported on the availability of extensive legalassistance programmes providing legal advice and services ranging fromattorneys to matrimonial matters, debt issues and taxes. Such support is par-ticularly relevant to military personnel deployed on overseas missions and tothe families who remain behind. Military personnel deployed on peacekeepingand other overseas missions receive as part of their deployment processing areview of the documents and legal issues, which would be important to themwhile away from their families. There is also a programme to ensure thatmilitary personnel are aware of their right to vote, and assistance given inapplying for and mailing absentee ballots.

Finally, there are special representative institutions, unions and associationsof the armed forces regular personnel and conscripts. While in some countriesthe professional personnel have the right to membership in an employee associ-ation, conscripts have the right to participate in decision-making with respectto their working environment. Furthermore, special employment agreementsin the armed forces are subject to the same civil law regulations as other civilservice positions.194

Another country referred to a new agreement reached with the ‘defenceforces representative association’ on grievance procedures, widening the scopeof complaints for individual personnel. The new procedures include the appoint-ment of an independent ‘Complaints Inquiry Officer’ who may inquire into

193 Some of the national parliaments have ombudsman’s systems that cover all appealsand an additional specialised Ombudsman to whom soldiers and servicemen canbring their appeals. In certain countries, this institution is also called the InspectorGeneral of the Armed Forces.

194 An individual participating state reported that disputes between the individualemployee and the armed forces on employment matters were additionally regulatedby the national system of ‘industrial tribunals’ where major unions can solve policymatters connected to agreements between labour unions and the government. Thereport in question also mentioned that disputes between the individual employeeand the armed forces on employment matters have to be brought before the civilcourt system.

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complaints on behalf of the minister and report thereon with recommendationsto the minister for his directions in the matter.

In another participating state, the military representation, characterised asneither a trade union nor a guild, ensures the protection of the interests of themilitary and directly expresses the professional requirements. According to thelaw, it expresses opinions, makes proposals and requests concerning legislationand regulations governing the legal status, pay, provident funds, health insur-ance, educational improvement and even the ‘morale of the military’. The bodiesof the Military Representation are regularly heard by the Chief of the DefenceStaff, by the minister of defence and by parliamentary committees. Every twoyears, it takes part in the definition of the economic conditions of militarypersonnel. Every four years, it takes part in the definition of judicial aspectsof the employment conditions of military personnel. It also checks that agree-ments are implemented. It can maintain relations with bodies and organisationsoutside the armed forces for all activities related to social promotion and welfareof the personnel.

A few participating states additionally reported on the institutions protectingthe armed forces personnel serving their compulsory service. In one country,conscripts have a special representative organisation to protect their rights. Therepresentative organisation is consulted by the military on issues regardingdrafted personnel. Individual reports have underscored that drafted personneland their representatives can equally use the legal provisions of appeal throughprofessional personnel and through the chain of command.

One country explained that the legal protection of conscripts is based onclear rules of competences and procedures and on the supervisory function ofthe higher authorities. In addition, central call-up appeals boards handle allappeals made against decisions on military issued by call-up boards, defencestaffs or military province headquarters. Typical appeals concern a wish to defera refresher course, to defer compulsory military service or alter the intake date,or matters concerning an individual’s fitness classification. Furthermore, con-scripts who are dissatisfied with the actions taken by their military superiorsmay have these actions investigated by a higher military superior. In case ofdisciplinary actions worth noticing, conscripts may also appeal to the generalcourt of first instance. After the judgement of the court of first instance theprocedure can be continued to the Court of Appeal.

One country finally reported that conscripts have the right to submit com-plaints to the parliamentary Ombudsman. These complaints can be made inwriting or directly to the Ombudsman, who regularly visits many garrisons everyyear. During these visits, conscripts can also talk with the Ombudsman privately.


There is a conscript committee whose main purpose is to look after and developservice conditions of conscripts. The members of the Committee are chosenby election among those conscripts who serve in that garrison. Only the con-scripts have the right to vote in these elections. Conscripts are also free to jointhe ‘Union of Conscripts’, which is a national organisation for lobbying andrepresenting the interests of conscripts.

2.4 Inter-state Aspects of the Information Exchange

The two inter-state aspects on the combating of terrorism and the stationingof armed forces on foreign territory are provided by paragraphs 6 and 14 ofthe Code of Conduct195 and reflected in Items 1 and 3 of the 1998 Question-naire:

item 1 Appropriate measures to prevent and combat terrorism, in particu-lar participation in international agreements to that end.

§ 6 “The participating states will not support terrorist acts in any way andwill take appropriate measures to prevent and combat terrorism in all itsforms. They will cooperate fully in combating the threat of terroristactivities through implementation of international instruments and com-mitments they agree upon in this respect. They will, in particular, takesteps to fulfil the requirements of international agreements by which theyare bound to prosecute or extradite terrorists.”

Item 3 Stationing of armed forces on the territory of another participatingstate in accordance with their freely negotiated agreement as well asin accordance with international law.

§ 14 “A participating state may station its armed forces on the territory ofanother participating state in accordance with their its freely negotiatedagreement as well as in accordance with international law.”

2.4.1 Combat and Prevention of Terrorism

The reporting under item 1 of the 1998 Questionnaire shows that the par-ticipating states are committed to further enhance global, regional, bilateral and


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domestic cooperation and coordination to fight terrorism.196 Preventive activ-ities to fight related problems like organised crime or the financing of terrorismare of increasing interest to the participating states. Furthermore, international,multilateral and bilateral agreements are concluded to combat and preventterrorism and organised crime, including arms and drugs trafficking as wellas trafficking in human beings. Special measures are taken within internationaland regional arms control programmes. Many of the countries in Central andEastern Europe have reported on the conclusion of respective arrangementssince the 1990s.

2.4.1.1 Global Arrangements

In immediate reaction to the terrorist attacks of September 11, states con-demned terrorism in all its forms and whatever the motivation, and refused anyconcessions to terrorist demands. Efforts are taken to ensure compliance withthe United Nations Security Council Resolution (UNSCR) 1373197 and globalimplementation of this resolution. The participating states to the OSCE Codeof Conduct expressed themselves committed to enhance cooperation with theUN General Assembly Counter-Terrorism Committee.198 One immediate re-action after September 11 has been the freezing of possible accounts and assetsof organisations and institutions supporting terrorist activities.

Some of the participating states reported on their active participation in thenegotiations of the Comprehensive Convention on International Terrorism, aswell as the Draft Convention for Suppression of Nuclear Terrorism, (then)pending before the 6th Committee of the UNGA. Some of the countries referredto their submission of national reports with the UNSC Counter-TerrorismCommittee.

In addition, the participating states made efforts to ratify and implementdocuments like the Convention on the Prohibition of the Development, Produc-tion and Stockpiling of Bacteriological and Toxic Weapons and on their

196 The participating states reported not only on the international efforts within theUN, but also on special multilateral activities, for instance amongst the G8. Themain regional efforts within the OSCE region are with regard to the EU and theCIS.

197 UNSCR 1373 is generally considered to be a solid and comprehensive counter-terrorism instrument on a universal scale.

198 See for instance: UNGAR 56/1.


Destruction (Biological Weapons Convention – BWC, 1972), the Conventionon Prohibitions on the Use of Certain Conventional Weapons Which may beDeemed to be Excessively Injurious or to Have Indiscriminate Effects (InhumaneWeapons Convention, 1980).199

While the participating states generally referred to enhancement of coopera-tion with INTERPOL and active contributions to the prevention of internationalcrime, some countries also emphasised their cooperation efforts with the RomeStatute of the International Criminal Court.

However, the main part of the information submitted, especially between1999 and 2001, has been with regard to the status of the signing and ratificationof the 12 UN Conventions and Protocols on the suppression of terrorism. Whilethe 12 international counter-terrorism conventions were signed in 2002 by theoverwhelming part of the OSCE countries, some of them have not yet ratifiedall of those instruments.200 In some of the new democracies of Central andEastern Europe, accession and ratification processes have been conducted onlysince the 1990s. While in some of those countries, major efforts have been madesince the early 1990s, others acceded to the international conventions only afterthe mid-1990s.

Since 1999, particular efforts have been taken by all of the participatingstates to ratify and implement both the International Convention for the Sup-pression of Terrorist Bombings (New York, 12 January 1998) and the Inter-national Convention for the Suppression of Financing of Terrorism (New York,9 December 1999). However, many countries ratified the two most recent UNconventions only after 2001, while in other countries ratification is still pendingin parliament. In some countries the Financing of Terrorism Convention willenter into force only after the completion of intra-state procedures.

Of particular relevance for some of the participating states is the UN Con-vention Against Trans-national Organised Crime (Palermo 2000). Mentionedwere also the Protocol for the Prevention, Suppression and Punishment of

199 This convention is also referred to by paragraph 34 of the Code of Conduct.200 The CPC has compiled a matrix, annexed to the overview of the (2002) information

exchange on the Code of Conduct, summarising the status of ratification of the 12UN Antiterrorism Conventions and Protocols (FSC/GAL/102/02, 6 September 2002,Annex). The overview observes, inter alia, that the status of ‘party to’ indicatesthat the participating state has signed and ratified the convention or protocol. Theparticipating states, in their relation to particular ratified conventions, also usenotions like ‘accession to’, ‘by succession’, ‘adhered’, ‘is bound’, ‘accepted’ or‘approved’ (Ibid).

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Trafficking in Human Beings, particularly women and children and the ProtocolAgainst Smuggling of Migrants by Land, Sea and Air, as amending the PalermoConvention of 2000.

An increasing number of parliamentary resolutions are adopted towardsjoining the International Convention on Prevention of Torture and OtherInhuman Treatment and Punishment, the Hague International Convention onCivil Aspects of Child Kidnapping in the World, the New York InternationalConvention on Prevention of the Usage, Finance and Training of Mercenaries,the Convention on Prohibition or Reduction of Ordinary Arms, as well as theConvention on Legal Assistance and Legal Relations in Civil, Family andCriminal Cases. Another country reported that the Protocol II on the Prohibitionof Mines had recently entered into force. The countries also referred to theirratification procedures with regard to the Civil Law Convention on Corruption.

2.4.1.2 Regional Arrangements

The participating states have reported on regional and multilateral arrange-ments within the EU, NATO, the CIS, South-Eastern Europe and the BlackSea Region.

One country explained that the UNSCR 1373 (2001) was partly implementednot only through national administrative steps, but also through EU legislation,and that measures were taken within the framework of the European Union.Reference was also made to the European Security and Defence Policy. Accord-ingly, diplomatic, military, financial, economic, police and judicial instrumentswere mobilised in order to prevent, evaluate and detect the threat of terrorism,and to protect from and repress terrorist acts on European levels. Some of theEuropean countries reported on the TREVI programme (terrorism, radicalismand international violence), the EU Schengen Accord and on additional effortsin the countries in Central and Eastern Europe, and the Mediterranean region,as well as within the transatlantic dialogue.

Many of the participating states are parties to the European Conventionon the Suppression of Terrorism. However, in some countries of Central andEastern Europe the European Convention entered into force only very recently,while others have just signed it. The participating states referred to nine Euro-pean Conventions and Protocols on terrorism:


European Convention on the Suppression of Terrorism (Strasbourg, 27 January1979)

European Convention on Extradition (Paris, 13 December 1957)

Additional Protocol to the European Convention on Extradition (Strasbourg, 15October 1975)

Second Additional Protocol to the European Convention on Extradition (Stras-bourg, 17 March 1978)

European Convention on Mutual Assistance in Criminal Matters (Strasbourg, 20April 1959)

Additional Protocol to the European Convention on Mutual Assistance in Crim-inal Matters (Strasbourg, 17 March 1978)

European Convention on the Transfer of Proceedings in Criminal Matters (Stras-bourg, 15 May 1972)

European Convention on the Transfer of Sentenced Persons (Strasbourg, 21March 1983)

Convention on the Laundering, Search, Seizure and Confiscation of the Proceedsof Crime (Strasbourg, 8 November 1990)

New NATO members reported on their commitments to cooperate with theAlliance in the prevention of proliferation of weapons of mass destruction.Within the relationship of NATO, Russia and Ukraine, of particular relevanceare the implementation of international disarmament agreements on the pre-vention of the uncontrolled transfer of weapons of mass destruction, includingtheir components and manufacturing technologies, dual-use goods and meansof weapons delivery.

Some of the participating states also referred to security initiatives in SouthEastern Europe and their contribution to multilateral cooperation initiatives inSouth Eastern Europe. These include measures for combating terrorism withinthe South European Defence Ministers (SEDM) group, the South East EuropeanCommon Assessment Paper on regional security challenges and opportunities(SEECAP), the South East European Security Cooperation Steering Group(SEEGROUP), and the South European Cooperation Initiative (SECI). As aconsequence of the September 11 terrorist attacks, efforts in the fight againstterrorism were intensified. For instance within the framework of the SEDMinitiative, one country organised a Seminar on defence support for non-prolifera-tion and counter-proliferation.

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Participating states from the Commonwealth of Independent states (CIS)reported on the state of ratification of the CIS agreement on the Combat ofTerrorism, as well as the Agreement on the Combat of Criminality, in particularits organised forms, concluded within the Black Sea Economic Community.Moreover, an Anti-Terrorism Centre of the CIS participating states has beencreated in cooperation with CIS countries. Multilateral agreements are alsoconcluded to prevent terrorism and organised crime in the Black Sea Region.

2.4.1.3 Bilateral Arrangements

Some countries have also reported on manifold bilateral cooperation andassistance programmes with other states inside and outside the OSCE region.Bilateral inter-state, inter-governmental and inter-administrative agreementsare concluded, including cooperation and assistance arrangements for the combatof terrorism and various forms of organised crime.201 Special bilateral agree-ments are concluded for legal assistance programmes in order to bring nationallegislations into line with international instruments and standards in the fieldof counter-terrorism.

Bilateral Treaties were concluded between CIS countries in order to enhancecooperation between the ministries of the interior on the suppression of terror-ism. Through the bilateral efforts between Ministries of the Interior, somecountries were in the process of implementing Joint Plans of Action in orderto more effectively prevent trafficking in arms, armaments and explosives, andto combat terrorism.

Since 1998, several bilateral agreements have been concluded in order toimprove border controls and control of border regions. Special memorandumsof understanding were concluded on the combat of terrorism and other formsof extremism, and sub-regional arrangements on the fight against terrorism,extremism and organised crime in the CIS region. The following issues aresubject to parliamentary resolutions in some of the CIS countries:

201 Individual national reports contained a list of over 50 bilateral agreements oncooperation and mutual assistance in counter-terrorism and crime prevention.


Strengthening of Friendship, Cooperation and Mutual Security

Legal Mutual Assistance and Legal Relations in Civil, Family and Criminal Cases

Transfer of Criminals and Instituting Criminal Proceedings or Executing Sent-ences

Enhanced Border Control

Cooperation in Crime Prevention

Exchange of Legal Information between governments

Exchange of Representatives of the Ministries of Interior

Transfer of Persons for Serving Sentence

2.4.1.4 Implementation of International Commitments on the DomesticLevel

The participating states reported on political, military, diplomatic, legislativeand judicial efforts to reinforce domestic counter-terrorism.202 In 2002, manycountries established post-September 11 National Action Plans, which havebeen completed with national capacity-building measures in the field of counter-terrorism. Countries have also reported on the formation of ad hoc anti-terrorismcommittees, as well as measures taken to reinforce general public safety.

In order to enhance the domestic legislative framework, concepts, systematicarrangements and technical means are established to cope effectively withterrorism. National action plans are put in place to implement not only theresolutions of the UN and the EU, but also the decisions taken by the OSCEin accordance with the 2001 Bucharest Action Plan on terrorism. Some of theparticipating states reported that the respective implementation process throughnational action plans will require amendments of relevant legislation. Speciallaws against terrorism are prepared which should be compatible with Europeanand global standards and serve as a tool for efficient implementation of therelevant UN and Council of Europe Conventions and other documents.

One country reported on the new ‘National Unified Strategy for CombatingCrime’ and underlined that the fight against terrorism occupied an important

202 One example is to reinforce civil aviation administrations for enhancing the securityand safety of aircraft and air travel.

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place within that strategy. One of the goals is the effort is to prevent thepossible use of the country’s territory by foreign and international terroristgroups as well as the prevention of attempts to set up channels of communica-tion between domestic criminal structures and international terrorist groups andnetworks.

The participating states tend to adopt multidisciplinary approaches tocounter-terrorism by coordinating efforts at ministries of the interior and justice,ministerial councils, intelligence services,203 federal police forces,204 federaljustice systems, and counter-terrorist units. Some countries mentioned newaction plans on cooperation among the services and the divisions of the internalaffairs institutions in order to fight terrorism and organised crime. Administrativecoordination of various levels and sectors shall reduce the overlapping ofauthority, as well as accelerating the decision-making with regard to the legis-lative process. Ad hoc coordination offices, including at foreign ministry level,are tasked with oversight of inter-ministerial coordination and joined in taskforce Groups responsible for UNSC 1373 issues and the identification of theprovisions that may need legislative amendments. Ministry of Justice Task ForceGroups are mandated to draft new laws on the suppression of terrorism, in-cluding the criminalisation of all terrorist acts. Working groups are establishedwithin ministries of the interior with the task of harmonising the criminal lawof the country with international conventions of a criminal and legal character.

EU candidate countries reported that over the last decade special structures,responsible for preventing and combating terrorism had been developed withinthe Ministry of the Interior. There are specialised detachments for combatingterrorism. The national services for combating organised crime also have acounter-terrorism division with two specialised units, one on internal terrorismand one on international terrorism. The counter-terrorism division is engagedin a direct information exchange and operational cooperation with the respectivelaw enforcement services of other countries. These efforts are taken in accord-ance with the application of national anti-terrorist legislation with the aquisof the EU. In some cases, Departments on Criminal Terrorism have been createdwith the aim of receiving, collecting and analysing information on any activitiesin this field. Within Ministries of the Interior and Ministries of Public Order,

203 National Intelligence Service Act 1993; Military Intelligence Act 1994.204 Including the international cooperation of the Federal Police with EUROPOL and

INTERPOL. Individual countries also reported on the establishment of NationalContact Points with INTERPOL and EUROPOL, as well as on the adoption of aRailway Police Act 1998.


particular measures are taken to restructure public order and military policeforces and to create special anti-terrorist and anti-drugs units at ministries ofpublic order.

In the perspective of adhering to European standards, EU candidate countriesreported on their commitment to incorporate in internal legislation legal textson combating the financing of terrorism. It was referred to in the EU Frame-work Decisions on terrorism, arrest warrants, freezing of funds or of otherfinancial assets, EU Council Regulations on combating the financing of terror-ism, as well as on freezing funds or other financial assets, the EU Directiveon money laundering, the eight Decisions of the Financial Action Task Force(FATF) on the financing of terrorism and money-laundering.

The application of international standards in domestic law differs fromcountry to country. For instance, one of the established democracies reportedthat no specific legislation was needed regarding suppression of terrorism, sincemost provisions to that effect were already included in the Penal Code. Priorto the ratification of the international conventions relating to terrorism, corre-sponding adjustments have been made in the relevant national laws and regula-tions. Furthermore, in accordance with the national legal system, all internationalagreements binding the country are incorporated into domestic legislationthrough an appropriate legislative measure.

Other participating states, however, mentioned the adoption of new nationalanti-terrorist legislation, including necessary modifications and amendmentsto the Penal Code and the Code of Criminal Procedure, including on MoneyLaundering, Banking, as well as Income from Organised Crime. Particularlegislative amendments are:

Prevention and suppression of the financing of terrorist acts

Legislation or other measures on the prohibition/prevention of recruitment toterrorist groups and the supply of weapons to terrorist

Border/visa/residence permit regimes

Exchange of information with other states

Procedures and mechanism to assist other states

Relevant additional information with reference to the close link between inter-national terrorism and trans-national organised crime, illicit drugs, money-laundering, illegal arms trafficking, and illegal movement of nuclear, chemical,biological and other potentially deadly materials

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Introduced were provision of new offences related to terrorism, while thelegal sanctions in the Penal Code against terrorism and organised crime tendto be widened and tightened. To this end, participating states are about tointroduce new types of criminal offences issues related to terrorism such as:

‘Terrorist organisations’

‘Financing of terrorism’

‘Terrorist acts’

‘Terrorist act against a representative of a foreign state’

‘Economic terrorism’

‘Establishment of armed groups aimed at offences against state or non-govern-mental institutions, organisations or individuals’

‘Acts of violence against the life and health of people’

‘Kidnapping’

‘Planning disturbances’

‘Mass fighting and disruption of public order’

More severe punishment was introduced for ordinary criminal offencescommitted as terrorist acts. Complementary to this, special Acts were adoptedon Police and Intelligence Services, setting forth their functional duties withregard to the fight against terrorism, including specific areas like witnessprotection. Criminal Codes envisage a number of articles on terrorism issues.In this context, special Laws on the Fight Against Terrorism have been adopted.One country reported, that a special Article on terrorism within the CriminalLaw recently entered into force. In the 1990s, punishment was reinforced alsofor crimes and acts of violence like:

Sabotage

Mercenary issues

Damage to oil pipelines


Trade in human beings

Formation of illegal paramilitary formations

Participation in armed conflicts of other states

One country noted that it had attached to its reply to the exchange ofinformation on the Code of Conduct the National Report pursuant to paragraph6 of UNSC 1373, as well as the Final Report of the Ministry of Defence TaskForce on Defence and Terrorism. The country reported that the UNSCR 1373would affect, inter alia, the processing of migration and asylum matters andthat by virtue of the Geneva Convention, terrorists could be refused asylum.National Migration Boards as well as the Aliens Appeals Board are makingcareful security assessments in asylum matters to avoid a situation whereterrorists could use the country for their operations.

The participating states also reported on the establishment of special bodiesdealing with counter-terrorism issues. Ministries of Defence are taking appropri-ate measures for fighting armed terrorism. Based on constitutional and legalprovisions of responsibility, defence ministries are taking part in planning andimplementation activities against terrorism. Ministries are involved withinInteragency Task Work Groups for surveying the national implementation ofthe UNSCR 1373, and have also established intra-ministerial Task Groups.Individual countries reported in detail on national measures taken at ministryof defence level:

Preparation of the armed forces’ missions for combating terrorism

Enhancing protection measures for military forces and facilities

Establishment of evaluation structures on terrorism, development of ‘intelligence’capacities through cooperation between the MoD and other competent nationaland international authorities

Improvement of the protection of communications and computer networks,strengthening of the armed forces’ capability to accomplish special missions incooperation with other states

Development of the infrastructure in order to improve the logistic support offeredto international missions

Improvement of the capacity to prevent and counteract attacks with Weapons ofMass Destruction

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Besides this, National Defence General Staffs have established Crisis TaskForces in order to permanently monitor the internal and international situationand crisis factors, and to ensure coordination with other structures. The follow-ing areas of defence legislation amendments are foreseen:

Defence planning: National Security Strategy, White Book on Security andNational Defence, Military Strategy

Draft Law on a National System for Crisis Management

Cooperation framework between the MoD and other institutions responsible forcombating non-conventional risks

Orders of the head of GST on training of military personnel for preventing andcombating terrorist actions

Conclusion of the Inter-ministerial Protocol on mutual exchange of informationand common response to crises

National Strategy for combating terrorism

2.4.2 Stationing of Armed Forces on Foreign Territory

The reporting of the participating states under item 3 of the 1998 Question-naire shows that they do not always perceive the issue in the same way.Although the issue still causes tension in some sub-regional contexts,205 sur-prisingly little information was exchanged concerning specific problems inrespective situations and neighbourhoods. Individual countries deemed it import-

205 Under the Istanbul Commitments signed by Russia in connection with the adaptedCFE Treaty, Russia was supposed to withdraw its conventional arms from Trans-dniestria (Moldova) by the end of 2001 and its troops by the end of 2002. However,Russia has not yet met these commitments. The Russian military commitments withregard to Georgia have been offset by the introduction of a unilateral visa regime,resulting in privileges for the secessionist populations of Abkhazia and the Tskhin-vali region (South Ossetia). Russian non-compliance has delayed the entry into forceof the CFE treaty. Victor-Yves Ghebali: The 8th Meeting of the OSCE MinisterialCouncil (27-28 November 2000): Anatomy of a limited failure. GIIS, Geneva. pp.3-4. According to Pal Dunay, ‘it is unlikely … that the adapted (CFE) Treaty wouldenter into force before 2004. Pal Dunay: Bring the Adapted CFE Treaty in Forceand or Bear the Consequences. GCSP, Geneva. forthcoming, p. 5.


ant to stress that there were no armed forces of their country on the territoryof other states, without noting if this referred to the specific context of thestationing of forces or the presence of forces as such.

Particular cases are small countries or Micro states, reporting that theprovision was not applicable, since they do not have armed forces of their own.However, some of these countries reported on special agreements with othercountries concerning the stationing of foreign troops on their own territory.206

There is something like a common sense – although no clear definition –of the concept of the stationing of armed forces on foreign territory. For agrowing number of countries, the issue becomes of mutual relevance in theframework of the external deployments or missions of national troops relatedto international military operations, peacekeeping and peace support and human-itarian relief operations, as well as international exercises or training pro-grammes. Relevant agreements are concluded on the basis of bilateral, multi-lateral or universal mandates. The reporting under item 3 generally showed aglobal, multilateral and domestic component.

The global component was dominated by the participating states’ description,listing and general emphasis on their national contributions to internationalpeacekeeping and peace support missions. Some of the participating stateswishing to become members of the EU or NATO even underscored theircontributions and efforts by listing not only the current number of personneldeployed, but also the number of servicemen that have died in the frameworkof international peacekeeping missions. However, few countries actuallyexplained the specific political, legal and other implications with regard to thestationing and deployment of their armed forces abroad.

The most important multilateral component is the NATO Partnership forPeace Programme. As a majority of participating states are also PfP memberstates, they submitted a status report with regard to the ratification of relevantNATO and/or PfP Status of Forces Agreements. However, few countries pro-vided detailed information on how they implement respective provisions andcommitments and apply their national legislations to those international stand-ards.

Within the domestic components, two aspects have been highlighted by acouple of established democracies. Some of them explained in more detail howthey harmonise their national legislation and implement their rights and duties

206 One of these countries further explained that it therefore concluded a defenceagreement with another participating state in the context of which the military forcesof the other state were stationed on its own territory.

324 PART II

in the case of the stationing and presence of foreign troops on their own territ-ory. Others submitted specific information on the democratic accountabilityof the government and the general decision-making process for the case of thedeployment of troops abroad.

2.4.2.1 International Peacekeeping

Many of the participating states associated the stationing of armed forceson foreign territory with the (external) deployment of peacekeeping forces.Certain countries reported that on the one hand units and sub-units of the armedforces should basically not be stationed outside their ‘own territory’. On theother hand (and as proposed by the President and approved by parliament)armed forces may be deployed for international peacekeeping missions. Manyparticipating states have therefore exchanged additional information on theircurrent and recent deployments in the framework of international cooperationand peacekeeping efforts, including such information as the number of deployedservicemen wounded and killed.207 The reported deployments of national con-tributions are usually related to UN, NATO, OSCE or CIS Peacekeeping andPeace Support Missions. Participating states also underscored their efforts toenhance the combat readiness of the armed forces in the framework of thepromotion of international cooperation, including the interaction with the armedforces of other countries. One group of participating states, however, reportedthat their countries exclude participating in peacemaking and peace enforcementoperations.

A few participating states in addition referred to the case of military inter-ventions (of their own troops) on the territory of other states. They reported,inter alia, that the system of democratic control of armed forces ensured thelegitimacy and legality of such foreign deployments. For instance, the participat-ing states referred to Chapter VI and VII of the UN Charter, as well as respect-ive Resolutions of the UN Security Council. A particular case was militaryintervention in the context of humanitarian relief operations or the right oflegitimate self-defence. One country also reported on the admission of foreigntroops on its territory in the framework of international military intervention.

207 One country reported that it had a total of several thousand military personneldeployed in international Peacekeeping an humanitarian assistance operations, sinceit had registered 17 dead and 51 wounded alone in the peacekeeping deploymentin the Former Yugoslavia.


It, inter alia, mentioned the conclusion of bilateral agreements with other OSCEstates in the context of the Kosovo intervention, and that it authorised NATOto use national airspace, sea and airfield facilities to support the operation.

Another case of the stationing of foreign troops on a country’s territory isthe existence of permanent military bases maintained by one country on theterritory of another country. One country reported that armed forces of anotherparticipating state were permanently stationed on its territory in accordancewith international law and a treaty concluded with the other state, and that thisstate was therefore authorised to maintain permanent military bases in thecountry.

2.4.2.2 Regional Arrangements

Another major topic of the reporting to item 3 is the so-called status offorces agreements. Since most of the OSCE member states are participatingin the NATO Partnership for Peace (PfP) programme, many reported on thestate of ratification of the PfP Status of Forces Agreement (SOFA) (19 June1995), including the two supplementary protocols thereto. Some of the parti-cipating states reported that they had just signed and published respectiveagreements, while ratification and implementation was pending. PfP SOFAAgreements must usually be ratified by national Assemblies. NATO membersadditionally reported on the respective NATO Status of Forces Agreement (19June 1951) and the supplementary Protocol thereto (3 August 1959). Sub-regional SOFA agreements were concluded in South East Europe under theDayton Peace Treaty. Bilateral arrangements were concluded within the CISand the Black Sea region.

In addition, individual countries reported on the recent entry into force ofa so-called Visiting Forces Act. This law regulates the preconditions and pur-poses of the temporary presence of foreign armed forces in the country. Per-mission for the stay of foreign troops on the country’s territory shall be givenby the minister of defence in agreement with the Minister of Foreign Affairsand is to be considered a ‘political act’. Such agreements are concluded withstates permiting their own armed forces to stay in their sovereign territory. TheseActs were usually concluded on a bilateral basis and on the principle of re-ciprocity of mutual regulations. Governments are given the power to put intoeffect, by statutory order without the consent of parliament, agreements withforeign states on the entry into and temporary stay of foreign armed forces on

326 PART II

their own national territory for exercises, transit by land or training of units.208

Visiting Forces Acts further enable the government to conclude (other) Statusof Forces Agreements on governmental levels. This can be done, for instance,when the PfP-SOFA is not applicable. The possible content of these agreementsis determined by law and refers in general to those legal matters regulated inthe PfP-SOFA.

2.4.2.3 Domestic Decision-Making Process

Finally, there is the topic of democratic oversight with regard to the (ex-ternal) deployment and stationing of armed forces. According to one nationalreport, mechanisms of democratic accountability ensure that any external orforeign deployments can be approved by even the President, Government, PrimeMinister, Defence Minister or General Staff. In turn, there are three optionsfor approval by:

Parliament – if proposed by the President

The President/ Head of state – if proposed even by the government, PrimeMinister or Defence Minister

The Defence Minister – if proposed by the General Staff

According to another country, proposals made by the General Staff onmissions of less than 30 days of duration and less than 1000 personnel deployedare to be approved by the Defence Minister. Decisions on joining military

208 Visiting Forces Acts must include regulations, inter alia, on imported weapons,as well as on the exercise of jurisdiction. There should be no exercise of jurisdictionby the host state in the case of criminal offences, unless essential concerns of theadministration of justice in the host state demand that jurisdiction be exercised. Theyfurther regulate the exercise of disciplinary authority and coercive measures, theinstallation of telecommunications facilities, public health and environmental pro-tection, questions of liability in the case of damage caused to third parties by personsacting not in the performance of official duties, and advance payment by the author-ities of the host state with subsequent reimbursement by the sending state. The basisof this Visiting Forces Act is the ‘unit’, which is a self-contained group with aninternal command structure, which acts militarily and pursues no activity liable tocause damage.


exercises with foreign units are usually proposed by even the Defence Ministeror Interior Minister and approved by the President.

One participating state reported that any deployment had to be under theConstitution. Recent amendments to the Constitution approved by the govern-ment stipulate that if ‘obligations arise from international agreements on collect-ive defence against an armed attack’ the government makes a collective decisionand immediately informs the parliament about its decision.

Individual countries reported that they had a special Agreement ConfirmationAct based on the Constitution. In compliance with these Acts and the Constitu-tion, the responsibility for prior decisions and the decision on deployment was‘distributed’ between the parliament and the president. In the event of human-itarian assistance, for instance, the prior decision lay with the governmentauthority.

One country reported that the matter of deployment of the armed forcesoutside the border of the Republic has been regulated by the Law on Participa-tion of Members of the armed forces, the Police, Civil Defence and Senior andJunior Civil Servants in Peace Operations and other Activities Abroad, andthat this Bill has been forwarded to the parliament for a second reading.

Finally, one country reported that the national ministry of defence hadprepared on behalf of the government a proposal to parliament to adopt thePfP-SOFA. The relevant paper has been reviewed by parliament and might besubmitted to popular vote in the case of a referendum. Moreover, if the defencelaw was amended, an adapted version of the PfP-SOFA agreement would haveto be elaborated as well.

3

THE CODE’S REGIME EVALUATION

At the 3rd follow-up conference on the Code, the participating statesemphasised the need to improving the Code’s implementation in general andthe information exchange and national reporting in particular.209 Part IIItherefore evaluates two basic aspects of the information exchange. The firstsection summarises the results of the 1999-2002 information exchange, as wellas substantial shortcomings of the reporting. The second section examines thereporting from a technical point of view and identifies possible ways of im-proving the information exchange.

However, before evaluating the Code’s regime from a qualitative point ofview, it may be useful also to quantitatively assess the information exchange.Between 1999 and 2002, the total number of participating states that suppliedinformation constantly increased:

1999 2000 2001 2002

Number of reports 43 45 48 52

Number of missing reports 12 10 7 3

Three of 55 participating states never submitted a national report between1999 and 2002. They are two micro-states and one country from Central Asia.Bosnia and Herzegovina, despite its particular political status, did neverthelesssubmit a report in 2002. Serbia and Montenegro reported in 2001 and 2002.

209 FSC.GAL/123/02, 8 October 2002.



330 PART II

In 1999, national reports were missing mainly from the three Caucasus countries,four Central Asian countries, as well as some of the micro-states or countrieswith no armed forces of their own. From 2000 to 2002, all three Caucasuscountries submitted their reports. In 2000, all five reports from Central Asiawere missing, while only two of them reported in 2001. In 2002, four CentralAsian countries supplied information. One of the established democracies didnot report in 2001. All others supplied information in all of the four reportingyears.210

3.1 The Substance of the Information Exchange

This section provides a summary of the main results of the informationexchange on the Code of Conduct (1999-2002) based on the assessment frame-work for the evaluation of the information exchange outlined above.211

Accordingly, it follows the four main topics reflected in the Questionnaire:supremacy of democratic constitutional civilian Power over military power;subjection of the armed forces to the norms and prescriptions of InternationalHumanitarian Law; respect of the human rights and fundamental freedoms ofthe armed forces personnel; inter-state aspects of the information exchange.

3.1.1 Supremacy of Democratic Constitutional Civilian Power overMilitary Power

The participating states’ reporting under items 2, 4 and 5 of the 1998Questionnaire constitutes the largest part of information exchanged between1999-2002. This information may be summarised according to four main topics:(I) National planning and decision-making process for the determination of themilitary posture; (II) Public access to information related to the armed forces;(III) Constitutionally-established authorities and procedures to ensure the demo-cratic political control of the security sector; (IV) Roles and missions of military,paramilitary and security forces.

(I) National planning and decision-making process for the determinationof the military posture: Information submitted on this topic may further be

210 FSC.GAL/7/03/Rev.1, 17 February 2003.211 See chapter 1.4.2.

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subdivided into five aspects: general information on the executive and legislativebranches of government; roles of parliament and the broader public; the ministryof defence and civilian leadership; NATO enlargement and national defencedecision-making; systems of presidential-executive decision-making in Centraland Eastern Europe.

General information on the executive and legislative branches of govern-ment. The national approaches to the roles played by parliament and ministriesin the defence planning decision-making process are diverse. Defence commit-tees and civilian ministers of defence do have different functions, responsibilitiesand authorities relative to the head of state, cabinet and national security coun-cils. Both with regard to the internal structure of ministries of defence and theaccountability mechanisms towards both government and parliament differentapproaches have been reported. Furthermore, the relationship, competenciesand chains of command between the minister of defence and the chief of generalstaff have not always been explained clearly, while defence general staffs seemto be not always an integral part of the ministry of defence and the regulardefence administration.

Some of the participating states have also emphasised the roles played bynational security councils, which are usually chaired by the head of governmentor state and composed of several ministers and defence experts. In some ofthe participating states, the president, who exercises overwhelming authorityover many defence matters through them, forms these councils. The roles playedby national assemblies and defence committees differ from country to country.While in emerging democracies of Central and Eastern Europe, responsibilitiesand authorities of parliaments and their defence experts tend to be under-developed, there are active and passive responsibilities exercised by parliamentsin the established democracies. In general, there is a broad variety of approachesto civilian control and democratic oversight both amongst the established andemerging democracies with regard to defence planning and the formulation andimplementation of security and defence policy and military doctrinal matters.Finally, the participating states have different systems of checks and balancesamongst the constitutionally established authorities. While one group of coun-tries tends to a parliamentary-democratic system, another group has made nodoubt about a dominating role of the executive and in particular the head ofstate or government.

Roles of parliament and the broader public. Parliamentary oversight is amost effective tool for the democratic control of the armed forces. Some of

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the established democracies have explained that they have a long tradition ofparliamentary-constitutional democracy. Accordingly, the national assemblyand specialised parliamentary bodies exercise overall oversight over the armedforces and all major defence matters. Some of the parliamentary democracieshave underlined that their parliamentary systems are based on democraticrepresentation and regular free elections. Furthermore, institutions andprocedures ensuring the democratic control of the armed forces must take intoaccount an appropriate participation of the major parties and opposition leadersin the decision-making process.

An effective key to the control function exercised by parliament are annualdefence agreements on defence funds and the adoption of the annual defencebudget, which must be public as an integral part of the state budget and containthe numerical strength of and organisational structure of the armed forces.However, before major defence matters are passed to and adopted by theparliament, public debate and discussion in the media and academic circles shallenhance the contribution of the public to the democratic oversight of the armedforces. This is particularly relevant with regard to the formulation of securityand defence policy. Annual or multi-year political defence agreements arepreceded by a public discussion of comprehensive reports analysing the securitysituation and environment. These reports, which also include policy recom-mendations, are usually prepared by governmental commissions, which ofteninclude non-governmental experts from civil society as well. In parliament,major defence issues and legal amendments are first discussed in the specialisedstanding and ad hoc committees and commissions and voted on separately inboth chambers of the national assembly before being passed for a final dis-cussion and vote in the plenary assembly. Parliament can finally take a moreactive and direct control of the armed forces through the amendment of defencelegislation, parliamentary hearings and inquiries, as well as through the rightof parliamentarians to visit the armed forces units, command posts and head-quarters, etc.

The ministry of defence and civilian leadership. Established democracieshave generally underscored the central function and leadership role occupiedby their ministers of defence. They explained that the bulk of the work ofdefence decision-making is within the competence and responsibility of theministry of defence. The latter is characterised by a considerable number ofcivil servants on the one hand, but not too extensive and bureaucratic admin-istration on the other hand. Within the defence establishment, the minister ofdefence has an overall political leadership and management function with regard


to the armed forces, while the chief of general staff is clearly subordinated tothe minister and responsible to him for the major operational activities andmilitary strategic matters on the basis of defence guidelines and directives issuesby the minister.

Outside the defence establishment, the minister is accountable to parliamenton behalf of the government for all major defence matters. In general, theestablished democracies have a relatively strong and firm system of civiliancontrol of the armed forces and their defence ministerial administration hasa relatively high amount of civilian expertise in defence matters. Comparedto this, countries of Central and Eastern Europe tend to emphasise that defenceministers and senior defence officials like deputy ministers and defence secret-aries must be civilians by law or at least officers who have retired from thearmed forces. Furthermore, some of these countries indicated that efforts areundertaken to restructure and civilianise the defence administration. Furthermore,general staffs are reintegrated into the ministry of defence and under thedirection of the civilian minister.

NATO enlargement and national defence decision-making. NATO countrieshave also referred to the relevance of the NATO planning processes, methodsand cycles for the national decision-making. Some of the members undergoinga transition to all-volunteer armed forces have reported on relevant adaptationsin the field of defence planning. While new NATO members emphasised theimportance of defence issues on the national level, NATO and EU candidatecountries also referred to inter-agency and inter-departmental coordination ofplanning processes not only to enhance the effectiveness of the defence systembut also to advance reform programmes and ensure compliance with efficiencycriteria. While a majority of the participating states from Central and EasternEurope have underlined the need for enhancing defence capabilities and readi-ness, individual countries have indicated that defence reform and developmentprogrammes are expensive and that their democratic systems must take intoaccount harsh economic and social conditions within the general transition todemocracy. No participating state, however, has explicitly pronounced that thesenational requirements may be ambivalent to relevant international commitments.

Systems of presidential-executive decision-making in Central and EasternEurope. Some of the emerging democracies in Central and Eastern Europe tendto national decision-making procedures dominated by a presidential-executivesystem. This is particularly characteristic, but not exclusive, to many of theCIS countries. Interestingly, CIS countries often reported on an integrated

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security sector decision-making process and the cooperation of the armed forceswith law enforcement agencies and other state institutions for the establishmentof general defence guidelines and military policy. Also the military budgetingprocess is based on the participation of different bodies of the security sectorother than the regular armed forces.

The role played by the legislative branch of government in many of thecountries in Central and Eastern Europe appears relatively weak. Some of themtend to a system characterised more by a ‘coordination’-relationship betweenexecutive and legislative authorities as well as a parliamentary system, whichoften appears to be no more than a ‘passing-through’ institution. In some ofthese countries, the head of state sometimes tends to have sole responsibilityfor ensuring military security and long-term development of the armed forces.

(II) Public access to information related to the armed forces: informationsubmitted on this topic may be further subdivided into three aspects: trans-parency and publicity of the defence budget; special legislation related to publicand restricted access to information; ministerial information policies.

Transparency and publicity of the defence budget. Transparency in defencematters has been viewed by the participating states from an international,regional and domestic perspective. As confidence-building measures contributeto enhancing transparency within and beyond the OSCE, (sub-)regional con-fidence-building measures have become more important. However, item 2b ofthe 1998 Questionnaire was mainly targeted at the domestic dimension oftransparency-building. Many of the participating states reported on the principleof the publication of the national defence budget. The defence budget is pub-lished at domestic and international level, in some cases as an integral part ofthe state budget. However, some of the participating states have only recentlyapproached the issue of public access to information. Moreover, some of theparticipating states, reporting on their efforts to adhere to NATO and EUstandards, also reported that certain information related to these issues was notaccessible to the public.

Special legislation related to public and restricted access to information.Some of the participating states have adopted special legislation regulating bothpublic access and restricted access to information related to the armed forces.The restriction of public access to information is generally regulated by law.Relevant legislation encompasses ‘freedom of information acts’ or ‘free accessto information acts’, ‘acts on open administration’, and even ‘privacy acts’.


Ministerial information policies. The dominant part of the participatingstates’ information submitted under item 2b related to ministerial public informa-tion policies. Many of the participating states have only recently establisheddirectorates for public affairs and information and press offices, which organiseregular press conferences.

Public access to information is also ensured through the opportunity to attendrelevant parliamentary debates, as well as the principle of publicity and publicaccountability of the state administration. Ministries of defence have establishedpublication and press centres that regularly publish journals and documents ondefence, as well as the defence budget. Press conferences are held to providethe public and mass media with relevant and accessible information related tosecurity and defence policy. These centres also maintain institutional contactswith the civil authorities.

Furthermore, some of the participating states have developed and enhancedinformation strategies, including open-door events, contact points and publicdefence education programmes. Other factors promoting transparency arepersonal contacts between civil and military subjects of society. Individualcountries in addition mentioned the integrating function of their militia systemsand the fact that public representatives of the public administration are involvedin important civil or military organisations and associations, thus providing forcomplementary external control of defence policy. Finally, a growing numberof participating states provide defence-related information via official websitesaccessible to the broader public.

(III) Constitutionally established authorities and procedures to ensure thedemocratic political control of the security sector: information submitted onthis topic may be further subdivided into four aspects: general informationrelated to the armed forces; specific information on paramilitary and internalsecurity forces; intelligence services; police and police reform.

General information related to the armed forces. Paragraph 20 of the Codeprovides for two rationales of the principle of democratic control of armedforces: The participating states consider the democratic political control of thesecurity sector to be an indispensable element of stability and security; further-more, they regard the integration of their armed forces with civil society asan important expression of democracy. Nevertheless, participating states intransition to democratic institutions and market economies, and wishing toadhere to NATO and EU, have tended to make general commitments withrespect to Euro-Atlantic norms and standards of democracy and civil-military

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relations. The principle of democratic control of armed forces is perceived asa prerequisite of democratisation processes. Most of the participating states haveestablished democratic standards of civil-military relations by adopting relevantconstitutional and legal provisions. Some of the emerging democracies haveadopted legal provision on the democratic and civilian control as such withintheir Constitutional and legal frameworks, and some of these countries reportedthat the principles of democratic civilian control would be applied explicitlyto the institutions of the national defence system.

The reporting under item 4 has been dominated by the provision of factualinformation on institutional and formal/legal information. While a relativelylarge amount of information was exchanged on first-generation measures insecurity sector reform, the participating states have provided virtually no in-formation on second-generation reform measures related, for instance, to thetraining and education of both military and civilian personnel, human resourcemanagement issues, as well as the engagement of civil society actors in defencereform. Relatively little information was supplied also on the important roleplayed by security and defence committees and commissions in parliament.

Specific information on paramilitary and internal security forces. Theseforces have different roles and missions from the regular military defence forces.However, a majority of participating states simply reported that they did notmaintain such forces. But when taking into account information supplied alsounder the other items of the Questionnaire, one has the impression that thereported absence of paramilitary and internal security forces has more to dowith the use of terminology than with reality. Another reason is related to thefact that these forces are usually not placed under the authority of the ministryof defence, but ministries of the interior, justice, etc.

Few countries officially place border/frontier/coast guards under the categoryof paramilitary forces (4b). Others regard border guards as an internal securityforce (4c) or just see them as a part of the police (4e). In peacetime, regularparamilitary formations are placed under the authority of the ministry of theinterior with sometimes own administrative structures. In wartime and timesof crises, they may be placed under the authority of the ministry of defenceand the command of the defence forces. Few countries place gendarmerieservices under the category of paramilitary forces. The information suppliedon paramilitary, internal security forces (and even intelligence services) showsthat the participating states do not have a common understanding of thesestructures. Where paramilitary and internal security forces exist, they differ withregard to roles and missions as well as their composition. In some countries


they are based on a voluntary personnel system, in others they are recruitedon the basis of conscription. However, the reporting on categories and items4b, 4c and 4d also shows that there are many conceptual and organisationalsimilarities. These forces are often placed next to the government and the state,assuring state security and public order. On the other hand, internal securityforces may be placed under different ministries (defence, interior, justice, financeand transportation). They are often headed by special commanders appointedon the basis of special procedures and directly accountable to even the headof state or government with no direct responsibility to respective ministers.Some of the participating states have even established special ministries forpublic order or national security. Individual countries further explained thatthese forces have security missions in sensitive areas of the national territorycomposed of a population different to the other remaining parts of the territory.Some of the participating states have established specialised parliamentarycommittees or commissions to oversee the activities of the two categories offorces under item 4b and 4c.

Intelligence services. The participating states’ reporting shows that thereare conceptual overlaps between internal security forces and intelligence serv-ices. In the case of the latter, there are services for internal and external intelli-gence, as well as military and civilian intelligence services. Some of the servicesare placed close to the government or head of state. Some countries suppliedinformation related to democratic oversight under item 4d. Special parliamentarycommittees oversee the posture of security forces and secret services and theiradministrative actions taken against the citizens. In addition, there is a generaltrend to reform and restructure intelligence services and to adopt legal amend-ments assigning new functions and competences, which are more clearly definedand aimed at better protecting the private life of citizens. Recent measures willalso enhance the effectiveness of the special services to deal with the newsecurity environment and improve inter-agency coordination with other relevantbodies. Finally a number of participating states reported on specific regulationsand mechanisms of governmental, parliamentary and judicial control of intelli-gence services (see the overview within chapter 2.1.3.3).

Police and police reform. Within the information provided on the Police(4e), there has been a certain trend to report on current police reform pro-grammes. Relevant measures aim at enhancing effectiveness and efficiency ofthe public police services, while competences and responsibilities are bettercoordinated at domestic and international levels. On the domestic level, the

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participating states have different approaches to distributing local, provincialand federal police authority and responsibility. However, some of the participat-ing states have reported on efforts undertaken to coordinate the different levelsbetter. On the international level, many participating states reported on theircooperation with Interpol and Europol and the general application of inter-national policing standards. Human rights issues tend to occupy a particularlyrelevant matter in this respect. Special training programmes and the establish-ment of police complaints boards will enhance compliance of police work withhuman rights standards. Some of the participating states have also taken stepsto depoliticise police structures within federal and republican ministries of theinterior and the composition of police forces in accordance with the ethniccomposition of the population.

(IV) Roles and missions of military, paramilitary and security forces:information submitted on this topic may further be subdivided into two aspects:regular military forces; paramilitary and security forces.

Regular military forces. Within item 5, the participating states have reportedon the roles and missions of military, paramilitary and security forces to ensurethat they act solely within the constitutional framework. The information pro-vided covers the general and special roles of these forces. Some of the partici-pating states have emphasised the armed forces’ integration with civil societyas an important prerequisite for democratic and civil control. Individual partici-pating states referred to the recent adoption of Acts on the military’s powers.These Acts systematically cover all legal issues, which have been regulatedso far separately. The participating states have reported under 5a on the rolesand missions of armed forces. These roles and missions to ensure that they actwithin the constitutional framework encompass territorial defence, civil pro-tection and border control, international cooperation and obligations, internalsecurity, safeguarding of public order and law enforcement, combating terrorismand organised crime.

Paramilitary and security forces. While many countries focused on the rolesand missions of the regular armed forces, others have provided informationalso on paramilitary (5b) and security forces (5c), including roles and missionswith regard to internal security missions. New roles and missions of the armedforces are in the field of the combating and prevention of new risks andchallenges. Amendments to defence legislation take into account a cleardefinition of the authorities and responsibilities regulating the roles and missions


of armed and security forces, including the individual accountability of thearmed forces personnel for their action.

Individual participating states have reported on roles and missions of para-military and security forces in specific or sensitive areas of the national territory.Others referred, under 5b or 5c, to the National Republican Guard and theirspecific roles and missions with regard to state protection and public order.Yet others mentioned the existence of civic organised non-governmental para-military institutions, which maintain regular working relations with the nationaldefence ministry in the area of public defence education. In this context thespecial roles of reservist and veteran organisations were also mentioned.

Depending on the national tradition and policy approaches, paramilitaryand internal security forces may have a wide range of missions related to state,Border and Constitutional Protection, Public Order, Criminal Prosecution,Gendarmerie, Military Counter-Intelligence, etc. New roles and missions arerelated to the combat and prevention of new threats to national security. Someof the participating states indicated that the current structural and legal measurestaken must also be seen in the framework of security sector reform programmesand the professionalism of armed and security forces, including the civilian-isation of formerly militarised bodies and special units.

Critical observations: It is a shortcoming of the 1998 Questionnaire thatthe issue of public access to information (item 2b) is focused on the armedforces only. It would be more coherent with item 4 to target the whole securitysector, including paramilitary and security forces. However, there is no commonunderstanding of the concept of the security sector as too many different ter-minologies exist. The participating states have apparently distinct perceptionsand meanings of paramilitary forces, and also different organisational andconceptual approaches to internal security. From the perspective of the armedforces and the (regular) military, little information was exchanged with regardto their internal security missions. The information exchange also shows thatmilitary units and bodies outside the regular military contribute to nationalplanning and participate in the decision-making process for the developmentof the military budget and the determination of the military posture. In all, froma security sector point of view it may be useful to reassess the meaning ofnotions like ‘military’ or ‘armed forces’.

Since item 2, 4 and 5 thematically relate to each other, it may be usefulto integrate the three items into a single one and to choose a common terminol-ogy with regard to the concept of the armed forces. In the current situation,some of the items refer to the security sector as a whole, while others just reflect

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a part of it, and yet others are restricted to the regular military and defenceforces. Given the broad variety of security sector approaches, it would at leastbe useful to adopt a Questionnaire which would apply one coherent terminologyto all items. In turn, participating states may be encouraged to more pro-activelyreport on their own security sector approaches and terminology.

The following table summarises some main critical observations with regardto the reporting on the topic of the ‘supremacy of democratic constitutionalcivilian power over military power’:


National Planningand Decision-Making Processfor the Deter-mination of theMilitary Posture

Public Access toInformationRelated to theArmed Forces

ConstitutionallyEstablished Auth-orities and Proced-ures to Ensure theDemocraticPolitical Controlof the SecuritySector

Roles andMissions ofMilitary, Para-military andSecurity Forces

Focus on factualand static informa-tion and relativelylittle transparencywith regard todecision-makingprocesses them-selves; Planningdecision-makingfocused on theregular militaryand defence forces;Relatively littleinformation withregard to theprocedures for thedevelopment andformulation ofmain strategicdocuments for thedetermination ofthe militaryposture.

Almost no in-formation on otherforces and servicesof the securitysector than theregular armedforces;The issue mayencompass a morecomprehensivedescription oftransparency-build-ing, includingaccountabilitymechanismsbetween relevantauthorities them-selves and takinginto account inter-departmental andinter-agency com-munication anddecision-makingaspects;Public access assuch is not yettransparency.

No commonunderstanding ofconcepts like para-military or internalsecurity forces;Provision offactual informationbut little informa-tion relating to‘second-generationmeasures’ insecurity sectorreform;Relatively littletransparency withregard to specificconstitutional andlegal provisionsensuring the demo-cratic and civiliancontrol of militaryand securityforces.

No explicit requestfor informationrelating to intel-ligence servicesand the police;No commonunderstanding ofthe concept ofsecurity forces;Little informationwith regard tointernal securitymissions.

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3.1.2 Subjection of the Armed Forces to the Norms and Prescriptions ofInternational Humanitarian Law (IHL)

The participating state’s reporting under item 8 of the 1998 Questionnairemay be summarised according to two major topics: (A) Respect of internationalhumanitarian law in peacetime and wartime; (B) Promotion of knowledge oninternational humanitarian law.

(A) Respect of international humanitarian law in peacetime and wartime.Some of the participating states have emphasised the relevance of IHL andhuman rights principles in the framework of combating new risks and the newroles and missions of armed and security forces. However, and given that item8 requests information on the instruction of the armed forces in IHL, only afew participating states referred to IHL and human rights training and educationprogrammes with regard to paramilitary and security forces. Information onthe training of security and police forces has not been subject to item 8.

Other countries have reported on the special function performed by militarylegal advisers, which are advising the command of the armed forces for opera-tional and instruction matters related to IHL and the law of war. Their rolesare particularly important in the framework of missions abroad and the complexoperational environments of peacekeeping forces. The advisory function of legalexperts is with regard to the educational preparation of troops, which are beingdeployed, but also the command’s planning of military operations. Armed forcesinvolved in international peacekeeping and peace support operations often facespecific political, legal and cultural environments. Soldiers deployed in suchoperations must specifically be instructed and trained in order to deal with thoseenvironments and be better prepared for individual frameworks of both militaryand civilian actors in the field, and the special needs and cultural prerequisitesof local and indigenous populations. Individual countries with conscriptionarmies reported that their legal advisers are civil servants recruited from allsectors of civil society and are part of the defence reserve forces. In times ofwar or crisis their number may be many times that during peacetime.

(B) Promotion of knowledge on international humanitarian law. The par-ticipating states reported on special training regulations and practical instructiontools like handbooks on IHL and the law of war. Some countries also mentionedeasy-to-carry personal instruction cards, which are distributed to each individualsoldier and referred to legal provisions regulating IHL instruction down tocompany level. Furthermore, subordinates and superiors must be aware of theirnational and international obligations and to individually account for their


actions. National governments additionally disseminate IHL principles throughofficial public web sites. Furthermore, there are national Codes of Conduct forthe armed forces on ethics and the military profession.

Finally, many of the participating states associated issues related to theimplementation of the OSCE Code of Conduct with the issue addressed underitem 8 of the Questionnaire. It appears that the participating states tend toconnect implementation issues with IHL instruction to the armed forces. How-ever, the provisions of the Code go far beyond this area of application. Firstof all, the Code basically addresses the whole security sector and not just theregular defence forces. Second, the implementation of the Code is not just aninternal matter for the forces themselves, but actually has its complement onthe political level with a special emphasis on democratic processes. Moreover,implementation of the Code is not just a matter of the emerging democraciesbut must be seen also in the general reform and restructuring programmes ofthe armed forces in the established democracies. One of the established demo-cracies therefore made a significant statement with regard to this complexpolitico-military framework of the implementation of the Code of Conduct,stating that although the prerequisites of the Code are generally considered tobe complied with, the mere existence of standards of domestic and internationallaw does not fully satisfy the requirements of the Code.

Critical observations. The participating states have exchanged informationmainly on the regular military forces. It may therefore be of added value if item8 of the 1998 Questionnaire were extended to the whole security sector, request-ing information also on the instruction of paramilitary and security forces inIHL, including intelligence and special police forces deployed abroad. Anothershortcoming of the information exchange is that the information does not exceedthe state institutions themselves. In the spirit of paragraph 42 of the Code ofConduct, the participating states may also be asked what they are undertakingto disseminate and make known IHL issues – as well as other provisions ofthe Code relating to the international law of human rights – ‘as widely aspossible’. Finally, some of the participating states tend to perceive the imple-mentation of the Code of Conduct predominantly from the perspective of theapplication of IHL norms and the relevant instruction of the armed forcespersonnel. However, the implementation of the politico-military Code alsoaddresses the civilian state officials and politicians dealing with security anddefence matters. After all, the non-official and non-governmental defencecommunity, the mass media, political parties and civil society should alsocontribute their part to effective implementation of the Code.

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The following table summarises some of the main critical observations withregard to the reporting on the topic of the ‘Subjection of the Armed Forcesto the Norms and Prescriptions of IHL’:

Respect of international humanitarianlaw in peacetime and wartime

Promotion of knowledge on inter-national humanitarian Law

Largely focused on the regular militaryand defence forces;Much information on officer training,little information on the training ofranks, conscripts and reserve forces;Detailed information on the role playedby legal advisers, but not on therelevant consequences for the com-manders of military and security forces.

Largely remaining within the limits ofstate and professional personnel;The implementation of the Code ofConduct is not just a matter of themilitary only but includes civilianofficials, politicians as well as certaincivil society actors.

3.1.3 Respect of the Human Rights and Fundamental Freedoms of theArmed Forces Personnel

The participating states reporting under items 6, 7 and 9 of the 1998 Ques-tionnaire constitutes another major part of the information exchanged in 1999-2002. This information may be summarised according to three main topics:(1) Recruitment and call-up for service in military, paramilitary and securityforces; (2) Exemptions from and alternatives to compulsory military service;(3) Protection of the Rights of the Forces’ Personnel.

(1) Recruitment and call-up for service in military, paramilitary and securityforces. The information submitted on this topic may further be sub-divided intothree aspects: General trend towards professionalism; Recruitment, call-up andhuman rights; Special information on paramilitary and security forces.

General trend towards professionalism. The reporting on the recruitmentand call-up for service in military, paramilitary and security forces has reflectedthe general professionalism trend, since many of the participating states areundergoing transitions to partly or fully professionalised armed forces. Whilea majority of countries still have personnel systems based on conscription, aprogressive number of participating states reported on a shortening of servicetime and the introduction and adaptation of the opportunity to perform altern-


ative civilian service. On the other hand, conscripts who have accomplishedtheir regular military service can apply for extra-term military service on avoluntary basis, for instance in missions abroad. Participating states are alsoadopting legislation for voluntary female armed military service.

Recruitment, call-up and human rights. Many participating states havereported on compliance with national recruitment and call-up procedures andlegislation with European and global standards. These standards relate toregistration, pre-induction and medical examination of draftees and voluntaryapplicants. Countries where service is based on conscription have also reportedthat they have established regional evaluation centres specialised on recruitmentand call-up matters. These centres or draft boards consist of specialised officers,doctors and psychologists. Medical and psychological tests allow the examina-tion of the draftee’s liability to armed military service. Conscripts may bedeclared fit, unfit or temporarily unfit for military service. Persons declaredfit for military service must have successfully passed a special physical perform-ance test. In countries with armed forces based on a voluntary service system,candidates must in addition adhere to certain educational standards of literacy,etc. The conscript’s assignment to the specialised units and services of the armedforces may take into account the individual qualities and personal preferencesof the draftee, like for instance professional knowledge and expertise, placeof residence, and date of call-up.

Recruitment and call-up for service in all forces must be based on theprinciple of non-discrimination, and a person called up must have reached theage of 18 years. In the case of paramilitary and security forces, some of theparticipating states have even voluntary or conscript systems. While a majorityof participating states have reported, within item 4, that they don’t maintainparamilitary and security forces, the reporting to item 6 has shown that manyof the participating states have armed formations that are not part of the armedforces and non-military armed security forces. In some of the countries, servicein these formations is equivalent to compulsory military service. Others reportedthat personnel assigned to these forces are based on a voluntary system. Someparticipating states reported on the possibility of performing compulsory para-military service in the border guards. Individual EU candidate countries referredin this context also to the professionalism efforts undertaken with regard tothe national border services. Other professionalism programmes deal withinternal security forces, while the training of officers contains issues like polic-ing ethics, national minority and migration matters, as well as human rightsstandards. Selection of personnel assigned to service in paramilitary and security

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forces is based on the specific requirements, duties and missions of these forces.Typical selection criteria are citizenship, political non-involvement and impartial-ity, and health.

Special information on paramilitary and security forces. While few partici-pating states reported on recruitment and call-up for service in paramilitary andsecurity forces on a voluntary basis, others mentioned that they recruit personnelfor these services by conscription and that service in these forces is equivalentto compulsory service in the regular military forces. The selection of drafteesis made on the basis of requirements determined by the specific duties andmissions of relevant forces and services. Special attention is paid to politicaland commercial non-involvement, citizenship, level of studies and the healthof the personnel.

Service may be performed in the border guards, special police and preven-tion units, public security police, government protection services, as well asnational republican guards. Some of the participating states reported that theyare about to professionalise their border guard and protection services accordingto EU standards, as others train their special forces personnel in police ethics,human rights, as well as migration and ethnic minorities issues.

(2) Exemptions from and alternatives to compulsory military service: Theinformation exchanged on this topic is summarised according to the three majorissues concerned: conscientious objection; exemptions from compulsory militaryservice; alternative civilian service.

Conscientious objection. Persons not liable to military service may beexempted from compulsory military service and perform alternative serviceinside or outside the armed forces. These are first of all persons declared unfitfor military service. Persons temporarily unfit for military service may betemporarily exempted from the performance of armed military service. Anothertypical category of a conscript performing alternative military service is a citizenobjecting to armed military service for conscientious reasons. A growing numberof participating states have reported on the adoption of specific legislation oramendments to military service acts on conscientious objection and alternativecivilian service. New members of the Council of Europe have in additionindicated their commitments to introduce such regulations in their nationalframeworks.

The protection of the human rights and fundamental freedoms of all forcespersonnel has been subject to item 9 of the Questionnaire. The reporting to both


items 7 and 9 shows that the issues of alternative civilian service and theprotection of the individual rights of service personnel are perceived in differentways and that there are different approaches to regulate and implement theseprinciples on the national level. However, while the issue of conscientiousobjection and subsequent alternative civilian service is of a more formal orinstitutional legal matter, the concrete procedures and mechanisms that ensurethe protection of individual rights in daily life in the service proves to be acomplex and more fundamental and sensitive issue. It shows, for instance, howthe principle of conscientious objection is applied in practice, or gives certainindications on the general relationship between the officers corps and the state.

Exemptions from compulsory military service. Exemption from compulsorymilitary service may be permanent or temporary. Temporarily exempted maybe persons temporarily unfit for military service, but also persons in severepersonal or family socio-economic situation, or persons with special professionalresponsibilities with a prevailing public interest. The latter may be exemptedfor the duration of their tenure or employment. Generally exempted are alsoResidents registered in specific areas of the national territory with a specificlegal status, or persons with dual-citizenship. The latter may be exempted onthe basis of special bilateral agreements, for instance if they have alreadyperformed military service in one of the two countries or because of otherreasons.

Alternative civilian service. Alternative civilian service can be performedin various sectors inside and outside the armed forces. Some of the participatingstates reported on the opportunity to perform unarmed alternative service invarious institutions of the public security sector as well as in the militaryeconomic and industrial sector. Alternative civilian service may be performedin the public economic and environmental sector, social and sanitarian assist-ance, education, culture and development, public construction, as well asregistered Churches. Some of the participating states reported on the prohibitionon performing alternative service in political parties, corporations, associationsand other non-profit organisations, trade unions and companies. As individualnational legislations use terms like non-military alternative labour service, someof the participating states have emphasised that alternative service must notcompete with the (civilian) labour market. In most of the participating states,alternative civilian service lasts longer than compulsory military service, whilethe total duration of both service options tends to be shortened in many coun-tries.

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(3) Protection of the Rights of the Forces’ Personnel: The informationsubmitted on this topic may further be subdivided into another three aspects:rights, duties and status of the armed forces personnel; restrictions of certainpolitical rights and freedoms; procedures and institutions ensuring the exerciseof the personnel’s individual rights.

Rights, duties and status of the armed forces personnel. Within the conceptof the democratic control of armed forces, the matter of the service personnel’sindividual rights is often evaluated in the framework of the internal order ofthe armed forces or even under the notion of democratic self-control of themilitary. Some of the participating states have emphasised that every personserving in the armed forces is a citizen like all the others, having the same rightsand duties. This principle of the citizen-soldier is also seen in the frameworkof the general embedding of the armed forces in the administrative apparatusof the state and the principle that disciplinary and criminal matters of the forcespersonnel are exclusively dealt with by ordinary civilian courts in peacetime.Some of the participating states have reported in this respect that they are aboutto change their national legal systems into a single and integrated civilian courtsystem, and that they have abolished martial or military legal systems. However,while the military profession also requires a specific commitment and legalstatus, ordinary courts of appeal usually also contain military judges andadvisers.

Typical matters of the professional service personnel are complaints orappeals related to financial, payment or social matters of the serviceperson andhis/her family, or matters related to career and promotion issues. Typical com-plaints submitted by conscripts relate to treatment by superiors, medical ex-amination, service postponement, etc. While a number of participating stateshave focused their information on the specific requirements and situation ofthe national officer’s corps, individual established democracies have in additionreported in detail on the mechanisms and institutions protecting the rights andfundamental freedoms of conscripts.

Restrictions of certain political rights and freedoms. Nevertheless, theparticipating states have not only reported on the protection of rights but alsoon the restriction of certain rights. These restrictions have to do with the prin-ciple of the political neutrality of the armed forces and the statutory obligationnot to engage in political activities of a partial character. Accordingly, thepolitical impartiality of the armed forces as an institution first relates to certainpolitical or civic rights. However, while the armed forces as an institution must


behave impartially, the individual servicemen may exercise their fundamentalfreedoms during the time they are not on service. And all servicemen mayalways exercise certain political rights like the right to vote. Some of theparticipating states have reported on certain restrictions of the fundamentalfreedoms of the forces personnel in the field of syndicate rights, freedom ofassembly and expression, freedom of movement and protection of privacy. Inturn the national reports mentioned specific unrestricted rights in the area ofpolitical freedoms, the right of complaint, appeal and legal assistance, the rightto information, military insurance, and freedom of thought, religion andconscience, as well as individual personality.

Procedures and institutions ensuring the exercise of the personnel’s indi-vidual rights. Institutions, mechanisms and procedures protecting the rights ofthe forces personnel encompass, inter alia, complaint and appeal procedures,investigation institutions and legal assistance services, as well as the represent-ative institutions and organisations of the armed forces personnel. Next to theright to appeal and complain, some of the established democracies have reportedon the possibility to submit reports, petitions, requests and remonstrance. Inaddition, special complaint boards enhance the protection of the rights of theforces personnel and support the ministerial management of social problemswithin the armed forces. Furthermore, Inspectors General of the armed forcesinvestigate individual cases and take actions necessary to eliminate legal viola-tions and to safeguard the human dignity of every serviceman. Some participat-ing states in addition institutionalised a parliamentary Ombudsman for the armedforces and the principle that the members of the armed forces may communicatefreely with the members of the national assembly. Decisions made by theOmbudsman give advice to the military command. Some of the participatingstates have created extensive legal assistance programmes for the personneldeployed in peacekeeping operations abroad and oversight in order to safeguardthe exercise of their individual rights while on mission.

A special role in the safeguarding of the rights of forces personnel is playedby military representative associations, while in some countries there even existlabour unions within the armed forces. Individual countries reported that respect-ive institutions appoint independent complaints inquiry officers who may inquireinto complaints on behalf of the minister of defence and give recommendationsto the minister for his directions in respective matters. The Chief of GeneralStaff, the minister and parliamentary committees on economic conditions ofmilitary personnel and judicial aspects of service regularly hear military repres-entative bodies. Servicemen may also maintain relations with bodies and

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organisations outside the armed forces for all activities related to social promo-tion and welfare of the personnel. Also the drafted personnel have representativeinstitutions for the legal protection of conscripts. These encompass Call-upAppeal Boards, Conscript committees and Unions of Conscripts, as well as thespecial function occupied by parliamentary Ombudsmen who regularly visitthe armed forces units and with whom conscripts may discuss even privatelyduring their stay at the garrison.

Critical observations. Not all national reports were quite clear about therecruitment and call-up of conscripts to paramilitary and security forces. Certainreports contained also unclear information about the minimum age of recruitedand called-up personnel. Furthermore, exemptions of and alternatives to com-pulsory military service seems to be regulated not always according to inter-national standards. While in individual cases compulsory military service canofficially be paid off, there is a broad variety of alternative services, whichappear to have more to do with ‘labour service’ than ‘civilian service’. More-over, there seems to be no common understanding amongst the participatingstates of conscientious objection on the one hand and the regulation of alter-native civilian service on the other hand. The protection of the individual rightsof all forces personnel is perceived by the participating states in sometimesrather different ways. For instance, some of the national reports focused onthe special needs and professional status of the officers corps and did not supplyinformation on the protection of ranks or conscripts as well. And while someemphasised that there are also duties and not only rights, others in turn reportedon ‘rights and privileges’ or special legal protection, in particular of the regularpersonnel and career servicemen. After all, the Code does not contain a listof individual rights of the forces personnel and therefore does not provideguidelines for the reporting either.

The following table summarises the main critical observations with regardto the reporting on the topic of the ‘Respect of the Human Rights and Funda-mental Freedoms of the Armed Forces Personnel’:


Recruitment and call-upfor service in military,paramilitary and securityforces

Exemptions from andalternatives to compulsorymilitary service

Protection of the Rightsof the Forces’ Personnel

Little transparency withregard to the assignmentof conscripts to para-military and securityforces;Relatively little informa-tion with regard to therespect of human rightsstandards in the recruit-ment and call-up of per-sonnel, in particular con-scripts.

Little transparency withregard to the legal pro-vision of conscientiousobjection and the regula-tion of other specificexemptions from com-pulsory military service;No common understand-ing of the concept ofalternative service.

No common understand-ing of the restriction ofcertain civic rights andpolitical freedoms of thepersonnel serving in thearmed and securityforces;Little transparency withregard to the relationshipbetween civilian-ordinaryand military-martial lawsystems responsible fordisciplinary and criminalcases.

3.1.4 Inter-state Elements of the Information Exchange

The participating states’ reporting under items 1 and 3 of the 1998 Question-naire is summarised according to the two issues concerned: (i) Combat andPrevention of terrorism; (ii) Stationing of armed forces on foreign territory.The two inter-state elements of the Questionnaire do not request informationrelated to democratic control.

(i) Combat and Prevention of terrorism: In 2002, in the aftermath of the9/11 terrorist attacks, the participating states generally supplied more detailedand comprehensive information under item 1. Information was supplied onglobal, regional and bilateral agreements and cooperation, as well as on domesticefforts to more effectively prevent and combat terrorism. The combat of terror-ism is often pursued in line with the fight against other risks and challengesto security, like organised crime, trafficking of drugs, arms and human beings,migration issues and border control, etc. The participating states reported oncooperation and coordination efforts undertaken on the international anddomestic level. Accordingly, the information exchanged may be subdividedinto four different aspects: global arrangements; regional arrangements; bilateral

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arrangements; implementation of international commitments on the domesticlevel.

Global arrangements. With regard to the international level, the nationalreports referred to global, regional and bilateral cooperation, while most of thecountries provided a status report of ratification with regard to the 12 UNConventions and Protocols and the implementation of the United NationsSecurity Council Resolution (UNSCR) 1373 of 2001. The information exchangeon the Code of Conduct shows that many of the participating states haverecently signed or ratified the International Convention for the Suppression ofTerrorist Bombings (1998) and the International Convention for the Suppressionof Financing of Terrorism (1999).212 Within the global efforts and contribu-tions to the combat and prevention of terrorism, many of the participating stateshave referred to their close cooperation with the 6th Committee of the UnitedNations General Assembly and the United Nations Security Council Counter-Terrorism Committee. In addition, some of the participating states also reportedon their efforts taken in the framework of Interpol and the Rome Statute ofthe International Criminal Court. In addition, many of the national reportscontained information on bilateral cooperation and assistance programmesconcluded on state, governmental and administrative levels.

Regional arrangements. Amongst the regional counter-terrorism programmes,the participating states reported on the activities undertaken in the frameworkof the European Union, as well as the Commonwealth of Independent States(CIS). The national report referred to status with regard to several EuropeanConventions and Protocols on terrorism, in particular the European Conventionon the Suppression of Terrorism (1979). Some national reports indicated thatUNSCR 1373 was partly implemented through the legislation of the EuropeanUnion, the European Security and Defence Policy, and related national adminis-trative steps. Some countries also referred to the EU Schengen Accord and theprogramme on terrorism, radicalism and international violence (TREVI). Theparticipating states of the CIS referred to several CIS agreements on the Com-bating of Terrorism and Criminality and the establishment of an anti-terrorismCentre of the CIS participating states. Bilateral agreements are concluded at

212 The annex of the Conflict Prevention Centre’s Overview over the informationexchange 2002 on the Code of Conduct contains an overview table on the statusof ratification by the OSCE member states of the 12 UN Antiterrorism Conventionsand Protocols. FSC.GAL/102/02.


state, government and administrative levels. In addition, the CIS countriesreported on bilateral agreements between national ministries of the interior onthe Suppression of Terrorism and the implementation of Joint Action Plans tomore effectively prevent trafficking in arms, armaments, explosives and terror-ism. CIS countries also reported on several bilateral agreements on bordercontrol and sub-regional arrangements to prevent extremist movements. Finally,some of the participating states reported on their contributions to internationalcounter-terrorism activities in South-Eastern Europe.

Bilateral arrangements. Inter-state, inter-governmental and inter-admin-istrative agreements are concluded in the field of legal assistance to improveborder controls and control of border regions. Bilateral memorandums are alsoconcluded on the combating of terrorism and other forms of extremism, as wellas organised crime.

Implementation of international commitments at domestic level. In theaftermath of the terrorist attacks of September 11, the participating states’information provided under item 1 of the Questionnaire has been extendedconsiderably in 2002. With regard to the domestic efforts and activities under-taken to counter terrorism, the participating states first of all reported on theapplication and implementation of international agreements and commitments.Many of the participating states have reported on national programmes toenhance coordination and capacity-building in the area of counter-terrorismand to unify national strategies for combating terrorism and organised crime.Some of the participating states adopted, in 2002, National Action Plans againstTerrorism and established ad hoc committees on anti-terrorism and the generalsafeguarding of public security. Some of the national reports emphasised therelevance of the application of international and European standards in domesticlaw and that national Penal Codes have recently been amended. However,individual established democracies explained that no specific legislation wasneeded regarding the suppression of terrorism, since most of the provisionscontained in international arrangements are already included in the domesticPenal Code. Moreover, corresponding adjustments are made in relevant nationallaws and regulations prior to the ratification of international conventions.

Some of the participating states recognised the connection between the newnational anti-terrorism legislation and respective amendments to the penal codein the field of money laundering, banking, income from organised crime, andeven corruption. The participating states have adopted provisions on newoffences related to terrorism and have generally widened and tightened penal

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legislation, including the more severe punishment of terrorist and criminal acts.Some of the participating states have in addition emphasised the connectionsbetween the threat of terrorism and migration and asylum matters. They referredto the responsibility of the national migration board and aliens appeal boardsto carefully assess security issues in asylum matters.

While few participating states referred to the recent establishment of specialbodies dealing with counter-intelligence, some others provided information onthe contribution of national ministries of defence and defence general staffsto the process of planning and decision-making against terrorism. In addition,intra-ministerial task groups have been established and amendments to thedefence legislations adopted in order to better coordinate activities with otherstructures.

The reporting to item 1 generally reflects the efforts and activities under-taken by the participating states to adhere to global and European standardsof counter-terrorism. In order to make the national legislation, regulations,structures and procedures consistent with those standards, some of the participat-ing states reported on current reform programmes of public order, military policeand anti-terrorist and anti-drug units. The countries reported on the enhancementof multidisciplinary approaches and inter-departmental and inter-agencycoordination. The enhanced cooperation between the internal affairs institutionsand administrative coordination will reduce the overlap of competences andaccelerate decision-making. Ad hoc coordination offices and task force groupsare mandated with the drafting of new laws on the suppression of terrorismthat include the criminalisation of all terrorist acts and harmonisation of nationalcriminal law with international conventions.

While the issue of terrorism is perceived by the participating states froman international and domestic point of view, some of the participating statestend to deal with the threat of terrorism only in line with certain other securityrisks. Indeed, no national reports contained definitions of terms like ‘terrorism’or ‘terrorist activities’. Individual countries reported that they perceive the threatof terrorism not just as a threat to security but also a serious threat to humanrights and that accordingly, terrorism must be eradicated on national territoryand elsewhere. While few countries indicated that counter-terrorism efforts(themselves) must be consistent with human rights standards, fundamentalfreedoms and the rule of law, other noted that basic rights and freedoms maybe restricted by law if this is necessary for the protection of the state, publicorder and security and even public health and morality. Individual countriesreferred to the establishment of Civic Education and Leadership Centres within


national ministries of interior and public order in order to enhance the linksbetween the police forces and the national population.

(ii) Stationing of armed forces on foreign territory: The information sub-mitted on this topic may equally be split into an international, regional anddomestic aspects: international peacekeeping; regional arrangements; domesticdecision-making processes.

International peacekeeping. The participating states’ reporting on the station-ing of armed forces on foreign territory (item 3 of the Questionnaire) hasreflected three major trends: – First, many national reports referred to theexternal deployment of troops and their contributions to internationalpeacekeeping and peace support operations. – Second, a majority of participatingstates reported on existing bilateral and multilateral status of forces agreementsthat mutually regulate the stationing of armed forces on the territory of otherparticipating states. – Third, a few countries in addition referred to mechanismsof democratic accountability and oversight with respect to the stationing anddeployment of forces.

Although item 3 does not request information on the participating states’activities in the framework of international and multilateral operations, someof the reports emphasised the national contributions to UN, NATO, EU andCIS-led peacekeeping missions. Individual countries not only listed how manypersonnel are currently deployed but also how many have already lost theirlives in the framework of those operations. A few countries emphasised thenational armed forces’ combat readiness with regard to the promotion of inter-national security cooperation. Amongst the established democracies, a fewreports also contained information on the legitimacy and legality of militaryintervention on the territory of other states in the context of humanitarian reliefoperations and the right of legitimate self-defence. A few participating statesreferred to the permanent stationing of their armed forces on the territory ofanother participating states or foreign armed forces on the own territory on thebasis of bilateral agreement or treaties and in compliance with internationallaw.

Regional arrangements. While bilateral and multilateral agreements areconcluded in the CIS and Black Sea region, a majority of participating statesreferred to special Status of Forces Agreements (SOFA), which regulate thestationing and presence of their own troops on the territory of other countriesor of foreign military formations and personnel on the own territory. Most of

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the reports provided information on the status of signature and ratification ofthe Partnership for Peace SOFA (1995) and the two supplementary protocolsthereto. NATO members additionally referred to the corresponding NATO SOFA(1951) and additional Protocol (1959). Sub-regional SOFA’s exist under theDayton Peace Treaty.

In addition, individual participating states provided information on the recententry-into force of so-called Visiting Forces Acts. These Acts regulate thepreconditions and purposed of the temporary presence of foreign armed forceon the own territory. Based on an agreement between the ministry of defenceand the ministry of foreign affairs and bilateral reciprocity, the government isgiven the power to put into effect agreements with foreign states with regardto military exercises, transit by land or training of units. These powers are givenby statutory order and without the consent of parliament. Through the VisitingForces Act, the government is further empowered to conclude other Status ofForces Agreements on government levels when PfP-SOFA is not applicable.

Domestic decision-making processes. Few participating states have providedspecific information on the national decision-making process, accountabilitymechanisms and democratic oversight with regard to the deployment andstationing of armed forces. In particular, they referred to the legal regulationof competencies and responsibilities of parliament, government and the ministerof defence with regard to the personnel strength of deployments, duration andpurpose of foreign missions of the armed forces. While individual participatingstates also referred to obligations arsing from international and multilateralagreements, others explained that the ratification of Status of Forces Agreementsnecessitated the amendment of the defence law and that related governmentalreports were reviewed by parliament and might be submitted to popular votein case of a referendum.

Critical observations. It may be worth noting that virtually no national reportcontained information with regard to the democratic control of counter-terrorismactivities. Indeed, while some of the participating states provided informationon legislation and mechanisms that ensure political oversight over the deploy-ment and stationing of armed forces, almost no national return contained in-formation with regard to those processes ensuring democratic and civilian


control of counter-terrorism activities.213 Only a few countries emphasisedthat counter-terrorism efforts must be consistent with human rights, fundamentalfreedoms and the rule of law.214 One country mentioned the establishmentof a Civic Education and Leadership Branch in the ministry of defence andthe ministry of public order for strengthening the links between police forcesand the people. While none of the national reports provided a definition of thethreat of ‘terrorism’ or the notion of ‘terrorist acts’, individual national reportsshow that counter-terrorism efforts may also be perceived from the perspectiveof the protection of human rights.215

The participating states already exchange information on the internationalfight against terrorism in the framework of the United Nations, and they equallyexchange information on the stationing of armed forces under the OSCE GlobalExchange of Military Information. One may therefore consider the added valueof the information exchange on the Code. Given that the latter’s innovativeprovisions relate to the democratic control of armed forces, the intra-stateelements of the Questionnaire may more actively and directly reflect also theroles and missions of military and security forces in the fight of terrorism aswell as democratic accountability mechanisms with respect to the stationingof foreign armed forces on their own territory and deployment of their armedforces abroad.

The following table summarises some main critical observations with regardto the reporting on the topic of the ‘Inter-state Elements of the InformationExchange’:

213 Even the formal Decision taken by the Forum for Security Cooperation to expanditem 1 of the 1998 Questionnaire on the Code does not contain any single requestwith regard to democratic, political or civilian control. However, the new Question1(e) on the ‘roles and missions of armed and security forces in preventing andcombating terrorism’ indirectly refers to the principle. FSC.DEC/16/02, 27 November2002.

214 Concerned countries noted that the fundamental human and civil rights and freedomsmay be restricted by law, if this was necessary for the protection of state and publicsecurity, public order, public health and morality, including the ‘rights, freedom,honour and reputation’ of persons.

215 One country reported that it had suffered from terrorism for a long time and thatit considered terrorism not only a threat to security but also a serious threat tohuman rights, in particular the right to life. It further stated that the country alwaysacted decisively to eliminate this threat on its own territory and elsewhere.

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Combating and Prevention of Terrorism Stationing of Armed Forces on ForeignTerritory

Reports partly lack transparency withregard to the coordination and relation-ship between their global, bilateral,regional and domestic counter-terrorismefforts;Virtually no information related to thedemocratic oversight of various actorsand activities;No common understanding of the con-cept of terrorism as well as of the pre-vention of terrorist activities.

The tendency to report on peacekeepingcontributions misses the informationrequested;The reporting on Status of ForcesAgreements often lacks complementaryinformation with regard to democraticdecision-making and legitimacy ofcorresponding arrangements;Little transparency with regard to thelegality and legitimacy of bilateralagreements on long-term stationing ofarmed forces on foreign territory.

3.2 The Reporting Technique

Together with the 2000 Document on Small Arms and Light Weapons(SALW), the Code of Conduct is the most important normative documentdeveloped within the politico-military dimension of the OSCE. The participatingstates report on the implementation of the two documents on the basis of astandard Questionnaire.

Substantially, the two documents differ considerably and cannot be comparedin a direct way. However, if both information exchanges are assessed from aformal point of view, certain similarities and parallels are obvious. The CPC’soverview on the 2001 information exchange on the SALW-Document containssome observations related to the methodology and technique of the participatingstates’ reporting, as well as suggestions as to how the effectiveness of thereporting may be enhanced.216 At least five of those observations and thecorresponding suggestions on how the information exchange may be improvedare also relevant for the reporting on the Code:

216 FSC.GAL/9/02, 23 January 2002, p. 26-27.


Issue Problem Possible Solution

Language Not all reports are submittedin English

Provision of courtesy translationsinto English

Terminology Different national traditionsand perceptions

Adoption of a commonterminology/glossary217

Transparency Ambiguities on the status oflegislation

Reporting should include bothexisting and non-existing legis-lation

Degree ofdetail

States have diverging criteriafor the determination of rel-evant and complete informa-tion

Bilateral or multilateral technicalassistance

Technique There are different reportingtechniques

Elaboration of a model report onthe Questionnaire or trans-formation of the Questionnaireinto a template/matrix218

This Section assesses the information exchange from a technical point ofview, taking into account four major aspects of the reporting: (1) The technicallyupdated 2003 Questionnaire; (2) Enhancing effectiveness, transparency andefficiency of the reporting; (3) Contributing to the documentation of bestpractices.

3.2.1 The Updated 2003 Questionnaire

The analysis of the structure and contents of the 1998 Questionnaire hasshown that items 2, 4, and 5 on the one hand and items 6, 7, and 9 on the otherhand substantially relate to each other (see chapter 1.5.1). Many of the nationalreports contain duplications, repetitions and overlaps of information providedwith the two groups of questions. Furthermore, the structure of the 1998 Ques-

217 At least the items of the Questionnaire should be drafted according to a coherentterminology in order to prevent unnecessary inconsistencies of the reporting.

218 A model report may also be considered a mid-term measure, while the possibledevelopment of the Questionnaire into a template or matrix may also be consideredas a long-term measure.

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tionnaire does not reflect a basic sub-division of inter- and intra-state aspectsof the Code. A structurally and substantially rebalanced Questionnaire wouldtherefore produce a clearer and more comparative information exchange.219

The Conflict Prevention Centre therefore considered how to improve thequality of information provided, for instance within items 2, 4 and 5. TheOverview suggests further specification of Question 4 in order to separate betterthe differing subjects of the information exchange (especially those of item 2on the one side and item 5 on the other side). As a supplementary measure,the participating states may be encouraged to report within Question 4 on allexisting forces and to provide their own individual categorisation.220

As the individual items of the Questionnaire sometimes address similaraspects, the CPC underlined, that this would lead to overlaps on similar factualinformation on legislation, governing processes, authorities, institutions orforces and descriptions of the roles and missions of those institutions, authoritiesand forces.221 A reformulation of the questions could lead to more comparableinformation and facilitate the procession and analysis of the informationexchange. The overview therefore recommended that the Questionnaire berevised.222

During the 3rd follow-up conference, a number of participating states sug-gested four main measures to improve the information exchange on the Code.– First, in order to avoid annual repetition of information by national reports,the participating states should provide a one-off exchange especially regardingcurrent legislation. This information could be updated as necessary. – Second,the Questionnaire could be revised in order to elicit more targeted information.This could be achieved through the establishment of sub-sections and sub-

219 “... the degree of information requested is not always obvious, which leads todiverging interpretations by the participating states. The relevant paragraphs quotedwith the questions are in some cases misleading, because they cover more aspectsof the issue than those specifically referred to within the question. With a moretargeted wording and structural rearrangement of the questions, the informationprovided could be processed more easily by ... (the) participating states.” FSC.GAL/102/02, 6 September 2002, p. 1.

220 Ibid, p. 12. Moreover, the CPC Overview also considers that: “The subject ofpolitical control and their respective processes and institutions could be combinedinto one question, which would separate the contents of the Question and leavespace for the elaboration of roles and missions of the forces in response to Question5.” Ibid, p. 13.

221 FSC.GAL/122/02, p. 3.222 Ibid., p. 4.


questions to the individual items. Moreover, the questions could be rationalisedso as to minimise repetitions and avoid cross-references. – Third, Specificaspects like for instance the democratic control of armed forces should befurther developed. – Fourth, a model answer to the Questionnaire may beelaborated and footnotes could be added to clarify the questions.223

In order to improve the level of the national reporting, two suggestions weremade. – First, the questions of the Questionnaire should be made clearer, andsecond, practical tools should be elaborated to enable the participating statesto answer the questions better. – Second, the possible elaboration of a modelreport or guidelines for reporting was discussed.224

In view of the forthcoming reporting year 2003, the participating states havebeen open, since the 3rd follow-up conference, towards the idea of reviewingthe Questionnaire.225 After a first amendment of item 1 on terrorism,226 theForum for Security Cooperation has finally adopted a ‘technically updated’Questionnaire in 2003.227 The updated 2003 Questionnaire now contains sevenitems in the place of 10: it is annexed to this analysis under Annex 7 of Part II

223 FSC.GAL/123/02, 8 October 2002, p. 2.224 FSC.GAL/122/02, p. 5. Some delegations, however, questioned the use of such

additional tools (ibid.). Individual delegations even expressed their reservations withregard to a model answer, since this may also become just a bureaucratic exercise.Ibid, p. 8.

225 Ibid, p. 4.226 Aimed at the establishment of a more detailed and target-oriented information

exchange on this issue. FSC.DEC/16/02, 27 November 2002.227 FSC.DEC/4/03, 9 April 2003 (reproduced in Annex 8 of Part II of the present book).

The Annex to this Technical Update of the Questionnaire on the Code of Conductcontains the revised Questionnaire. On 4 April 2003, the FSC adopted a draftdecision on the same issue (FSC.DD/4/03, 4 April 2003). Based on joint proposalssubmitted by Germany and France (FSC.DEL/41/03, 21 February 2003; FSC.DEL/77/03, 24 March 2003) as well as a food-for-thought paper submitted by Austria(FSC.DEL/78/03, 25 March 2003) in February and March 2003, the FSC took upthe matter of the revision of the 1998 Questionnaire as discussed during the thirdfollow-up conference on the Code in September 2002. Moreover, the participatingstates considered establishing ‘model answers’ to the individual items of the (new)Questionnaire ‘as a means to facilitate the implementation of the informationexchange and to encourage dialogue on matters related to the questionnaire’ amongthe participating states (SC.DEC/4/03), 9 April 2003. p. 2. Already during the thirdfollow-up conference on the Code, the idea was discussed to mandate the ConflictPrevention Centre to work out a model report or guidelines for reporting (FSC.GAL/122/02, 8 October 2002, p. 1).

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of the present book. This technically updated new Questionnaire rebalancesthe structure and substance of the 1998 Questionnaire without actually extend-ing or modifying its content. However, the new Questionnaire contains newsub-questions that render the information exchange clearer and more target-oriented. The improvement of the Questionnaire aims at enhancing a moreprecise, logically structured and target-oriented information exchange.228

The new item 1 on terrorism now contains no less then five sub-questions,including on the roles and missions of armed and security forces in preventingand combating terrorism (new item 1e). The former items 2, 4, and 5 have beenintegrated into the new items 2 and 3, while the former item 3 on the stationingof armed forces on the territory of another participating states has become thenew item 4. The issue of the public access to information related to the armedforces (formerly item 2b) has been cut from item 2, which is restricted to theissue of the national planning and decision-making process with regard to themilitary posture and defence expenditures. The new item 3 summarised withinfour sub-questions, what the 1998 Questionnaire contained in items 2b, 4 and5. 2b on the public access to information related to the information exchangeis the new item 3d, and the former item 5 on the roles and missions of themilitary, paramilitary and security forces as well as controls that they act solelywithin the constitutional framework is the new item 3c.

The splitting of the former item 4 into two new sub-questions is interesting.While the new item 3a requests information on the ’constitutionally establishedprocedures ensuring effective democratic control of the military, paramilitary,and internal security forces, as well as intelligence services, and the police’,the participating states provide information, under the new item 3b, on the’constitutionally established authorities/institutions responsible for the demo-cratic control of military, paramilitary and security forces’. The distinction madebetween procedures to ensure effective democratic control (3a) on the one partand authorities and institutions responsible for democratic control (3b) on theother part, is certainly of added value relative to the 1998 Questionnaire.However, it is surprising that the outline of the security sector is not the sameand recalls relevant aspects of the terminological inconsequence or incoherenceof the 1998 Questionnaire. While item 3a refers to five specific categories of

228 According to the perception of the chairman of the third follow-up conference onthe Code, the information exchange may be improved by the re-formulation of somequestions in order to create a more ‘structured, clear and focused’ exchange ofinformation. FSC.GAL/122/02, p. 1.


forces and services, item 3b contains just 3, reflecting the structure of the formeritem 5 and not the former item 4, as it is the case with the new item 3a.

The former items 6, 7, and 9 have been integrated into the single new item5 (structured into three corresponding sub-questions), while the former item8 on the instruction of International Humanitarian Law has become the newitem 6. In addition, the new item 5 contains the supplement ’if applicable’ withregard to the issues of recruitment or call-up and exemptions or alternativesto compulsory military service. Finally, the former item 10 on ’Any otherinformation’ has become the new item 7.

The results of section 1.5 of this analysis therefore confirm the participatingstates’ perception related to the overlaps between items 2, 4, and 5 and between6, 7, and 9 of the 1998 Questionnaire. The findings of the CPC Overview ofthe Information Exchange on the Code in 2002, prepared by the ConflictPrevention Centre for the Third Follow-up Conference on the Code, came tosimilar conclusions.229

Since the new 2003 Questionnaire still has structural shortcomings, thisanalysis offers an optional Questionnaire from a strictly logical point of view:

229 Concerning the overlaps between items 2, 4, and 5 of the 1998 Questionnaire, theCPC observed: “The varying depth and precision of information provided … inresponse to Question 2 can be ascribed to the fact that its wording is rather generaland does not request information on individual topics. Furthermore, it does not fullyreflect the subjects addressed within the quoted paragraphs of the Code and thereforeleaves room for digressions from the core questions. Finally, the requested informa-tion is to a large extent similar to the information requested under Question No4, which leads to duplication and cross-references.” “Because Question 2 and 4(are) in part repetitive, the procedures of democratic control of forces were coveredto a large extent under Question 2. As a result, the responses … contain cross-references between both questions …; The specification of five types of forces inQuestion 4 encourages some participating states to assign all existing forces to thefive categories offered, while the risk remains that in the light of missing definitions,forces which do not necessarily fit into the categories might be left unreported.”;“Question 2, 4, and 5 address (i. a.) legislation and processes governing politicaldemocratic control of armed forces … As a result, the information provided …regarding these questions is repetitive and not specific.” (FSC.GAL/102/02, 6September 2002, pp. 9, 12, 13). Concerning the overlaps between items 6, 7 and9 of the 1998 Questionnaire, the CPC noted: “The subject covered by Question9 is closely related to the subjects of Question 6 and 7. This led to duplication ofinformation and cross-references by participating states. In order to facilitate re-porting, it is suggested either that these three questions be combined or that question9 be moved to follow questions 6 and 7 within the information exchange.” Ibid,p. 20.

364 PART II

SECTION I INTER-STATE ELEMENTS

Item 1 Combating Terrorism

Item 2 Stationing of Armed Forces

SECTION II INTRA-STATE ELEMENTS

Item 3 Supremacy of Democratic Constitutional Civilian Power overMilitary Power (First Pillar of the OSCE Regime on DCAF)

Item 4 Respect of the Human Rights and Fundamental Freedoms ofthe Armed Forces Personnel (Third Pillar of the OSCE Regimeon DCAF)

Item 5 Subjection of the Armed Forces to the Norms and Prescriptionsof IHL (Second Pillar of the OSCE Regime on DCAF)

SECTION III OTHER INFORMATION

Item 6 Other Implementation Arrangements

Section I integrates the inter-state aspects of the Code related to the inter-national combat of terrorism and the stationing of armed forces on the territoryof another state. The “virtual” Questionnaire therefore follows the basic structureof the Code, where the inter-state elements precede the intra-state elements.However, since the two elements clearly differ from each other, two separateitems are established within Section I.

Section II contains all items reflecting the OSCE regime on the DCAF. Andsince these elements relate to three relevant pillars of that regime, three itemsare accordingly established within Section II. Virtual item 3 reflects the firstpillar of the Supremacy of Democratic Constitutional Civilian Power overMilitary Power; Virtual item 4 reflects the third pillar on Respect of the HumanRights and Fundamental Freedoms of the Armed Forces Personnel; and virtualitem 5 reflects the second pillar on the Subjection of the Armed Forces to theNorms and Prescriptions of IHL.

Section III takes up item 10 of the 1998 Questionnaire on ‘Any otherinformation’, transforming it to ‘Other Implementation Arrangements’ (virtualitem 6) and thus targeting the final item on the core interest reflected in theQuestionnaire.


3.2.2 Enhancing Effectiveness, Transparency and Efficiency of theReporting

This analysis argues that five technical measures may enhance the effective-ness, transparency and efficiency of the reporting the Code of Conduct: (a)Amending the Questionnaire with regard to the use of terminology related tothe security sector; (b) Encouraging the participating states to annex legalamendments to enhance transparency; (c) Considering the establishment of astandard updating procedure to enhance efficiency. (d) Considering the publica-tion of the information exchange on the Internet; (e) Synchronising the cyclesof information exchange and follow-up.

(a) Amending the Questionnaire with regard to the use of terminologyrelated to the security sector: The opportunity to provide information on fivespecific forces and services of the security sector in item 4 of the Questionnairehas not been very effective so far. The CPC overview over the informationexchange in 2002 has underlined that this entails also the risk that in the lightof missing definitions, forces which do not necessarily fit into the categories,might be left unreported. Therefore the overview suggested encouraging theparticipating states to report within Question 4 on all existing forces and toprovide their own individual categorization.230

In addition, the FSC might consider the organisation of a roundtable-eventon the issue of the Code of Conduct and Security Sector Reform, includingdifferent national approaches and definitions of the Security Sector and indi-vidual military and non-military branches. Based on such an experience, theFSC may also consider the amendment, if appropriate, of clarifying guidelinesto the Questionnaire with regard to the five proposed forces and servicesmentioned in paragraph 20 of the Code.

(b) Encouraging the participating states to annex legal amendments toenhance transparency: A major part of the information exchange refers tofactual information related to the national legal framework. It is important tonote that the Questionnaire on the Code of Conduct contains the introductorysentence: “Participating states will supply relevant information (includingdocuments where appropriate) on the following items.”231 This corresponds

230 FSC. GAL/102/02, 6 September 2002, p. 12.231 FSC.DEC/4/98, 8 July 1998, Annex.

366 PART II

with § 41 of the Code, according to which participating states are requestedto “seek to ensure that relevant internal documents and procedures or, whereappropriate, legal instruments, reflect the commitments made in this Code”.However, it seems that most of the participating states did not annex relevantdocuments to their reports.232 But many of the national reports contain at leastone of the following three ‘stereotype-responses’ on factual legal or institutionalinformation:

(i) ‘Something has always been the case’ (even before the entry into forceof the Code);

(ii) ‘Something has been amended, introduced, implemented, etc.’ (and isin accordance with the Code);

(iii) ‘Something should be implemented or applied’ (ie according to theCode).

While the first type of reply was often used by the established democracies,the second and third types of responses tended to be used more often withinthe national reports of emerging democracies. Although one must estimate thataccording to the 1999-2002 information exchange, basic institutional and legalmeasures to implement the provisions of the Code have been accomplishedby a majority of the participating states, it may be of added value to encouragethe participating states to annex those recent documents or amendments, whichdocument these implementation measures.

(c) Considering the establishment of a standard updating procedure toenhance efficiency: On the one hand, the Information Exchange of 1999-2002is incomplete.233 On the other hand, as only a few participating states didhighlight or indicate their updates every year, the general procedure of theupdating of national reports could be improved. Since a considerable amount

232 Individual countries even referred to legal amendments only within item 10 on ‘anyother information’.

233 The number of national replies has progressed from 1999 to 2002. According tothe CPC overview of the information exchange on the Code of Conduct (2002),52 reports were submitted in 2002, as 48 were submitted in 2001. (FSC.GAL/102/02,6 September 2002, p. 2). Since individual participating states sometimes noted thatthey were not in a position to submit the information due to ‘technical reasons’,the Forum for Security Cooperation might discuss possible ways of providingtechnical assistance to participating states in their preparation of the national reports.


of the information within the national reports does not change every year, theConflict Prevention Centre suggested that repetitions could be avoided if theparticipating states would provide a one-off submission of the respective in-formation to the CPC, which could establish a database open to all participatingstates.234 This information could contain the main legal documents and institu-tional information related to the constitutional and democratic system. Ifadditionally a standard updating procedure could be considered, this mightenhance the efficiency of the exchange of information. The yearly nationalreplies could concentrate on the updating and would not have to repeat generallegal and institutional information every year. Such measures would alsoenhance the effectiveness of transparency requirements.

(d) Considering the publication of the information exchange on the internet:General transparency with regard to the implementation of the Code must alsobe assessed from the perspective of participating states’ commitments withregard to public access to information related to armed forces (item 2b of the1998 Questionnaire). For instance, the Forum for Security Cooperation mayconsider the publication of the information exchange on the Internet. For themoment being, the information submitted by the participating states is ofrestricted access. However, two options may be considered for the future: Onepossibility would be the provision of the information exchange through theofficial OSCE website with the option of public access. Another possibilityis to encourage the participating states to provide their returns through theirown national websites and open to the public.

(e) Synchronising the cycles of information exchange and follow-up: Theimplementation of the Code of Conduct is regularly reviewed by the follow-upconferences on the Code of Conduct. So far, three conferences have been heldin Vienna in 1997, 1999 and 2002. Compared to this, information exchangetook place every year since 1999. From the perspective of a more effectivereview of the implementation of the Code of Conduct, the cycles of both follow-up conferences and information exchanges might be coordinated or evensynchronised.

234 According to the consolidated summary, information on democratic structures,institutions and processes as well as on relevant legislation does not need to beprovided on an annual basis. Third Follow-up Conference on the OSCE Code ofConduct on Politico-Military Aspects of Security, Consolidated summary. (FSC.GAL/122/02, 8 October 2002, p. 4).

368 PART II

For instance, information exchanges and follow-up conferences could beheld in alternate years. This could offer the participating states to assess theupdates of the information exchange more effectively in the perspective of thefollow-up conference and to take into account the results of the conference forthe forthcoming information exchange. Moreover, such a synchronised two-yearcycle would also enable the OSCE to efficiently develop and establish a processof implementation lessons learned on the Code of Conduct.

3.2.3 Contributing to Best Practices

Since the security issues subject to the Questionnaire are of high complexity,referring to military and non-military, political and democratic institutions,structures, mechanisms and procedures, the participating states have exchangedan extremely large range of information.235 The complexity of informationis partly caused by the broad variety of the norms- and standard-setting of theCode and information requested by the Questionnaire. But this diversity reflectsalso the different national approaches and traditions of decision-making. Never-theless, basic elements of comparativeness are addressed through the political(and) democratic procedures, structures, authorities and institutions on subjectsof international, interstate- and intrastate character.236 Thus the CPC implicitlyestablishes possible basic patterns for a comparative framework for the assess-ment of the information exchange. This outline may be visualised, for instance,by the following diagram:

235 The CPC Overview observed that the participating states have exchanged a widevariety of information, including the description of extremely complex politicalprocedures and their relevant legislation (FSC.GAL/102/02, 6 September 2002,p. 21).

236 Ibid., p. 2.


However, as a consequence of the complexity of information exchangedon the Code of Conduct – and in the absence of an official assessment frame-work – the CPC concludes that there is not much room for the summarisationor generalisation of information, given the very nature and substance ofresponses submitted by the participating states.237 Although this analysis basic-ally shares this view, it argues that the establishment of case-studies based onthe information exchange on the Code of Conduct may advance the documenta-tion of the regime of democratic control of armed forces and other aspects likecounter-terrorism. This may in turn contribute to the evaluation of best practicesin the OSCE region. Empirical information, national case studies and theevaluation of best practices could also contribute their parts to the identification

237 FSC.GAL/102/02, 6 September 2002.

370 PART II

of Criteria for Success and Failure of the Democratic Control and Reform ofthe Security Sector.

3.3 The Way Ahead

Several delegates to the 3rd follow-up conference on the Code haveemphasised the undiminished importance of the democratic political controlof armed forces and the fact that Section VII on intra-state conduct is the mostinnovative part of the Code.238

After the terrorist attacks of September 11, in 2002 the participating statesexchanged relatively comprehensive information under item 1 on terrorism.However, the issue of terrorism covers a minuscule part of the 1994 Code ofConduct (one single paragraph out of 42). Compared to this, 50 percent of theCode’s provisions and paragraphs directly relate to the issue of democraticcontrol of armed forces. Accordingly, there has been a certain imbalancebetween the evolving security perceptions of the participating states and theoriginal intention of the Code. The considerable amendment of item 1 mayreflect the current security interests of the participating states, but it neverthelessbears no relation to either the word or the spirit of the document. This analysistherefore argues that the participating states could even revisit the Code, orthat they could review the implementation process of and exchange of informa-tion on this most important normative OSCE document since the HelsinkiDecalogue.

A first option would be to consider the establishment of a separate Question-naire on terrorism, which could also include elements related to other newsecurity threats and risks. Subsequently, the Questionnaire could concentrateon the issues related to the democratic control of armed forces in order todevelop the innovative parts of the Code and the politico-military dimensionof the OSCE. Moreover, the Questionnaire could be redrafted to cover moreconsequently and coherently the whole security sector. Finally, the participatingstates could consider adopting additional items related to Section VIII on thedemocratic use of armed and security forces, including internal securitymissions.239

238 FSC.GAL/122/02/, p. 7.239 The 1998 Questionnaire does not address the Code’s specific provisions on the

democratic use of armed forces, including in the event of internal security missions.Relevant provisions contained in Section VIII of the Code are considered to be of


A second option would be to stick with a single Questionnaire, but to takeinto account a more integrated approach between inter- and intra-state elements.In the spirit of the Code, there should be a more explicit bridge betweencounter-terrorism activities and democratic oversight. The same is true for thestationing of armed forces on foreign territory. Even with the 2003 Question-naire, one single and indirect bridge is established through the new item 1e(‘roles and missions of armed and security forces in preventing and combatingterrorism’).240 Indeed, amongst the recommendations made at the third follow-up conference on the improvement of the Code’s implementation, the idea thatthe fight against terrorism is consistent with basic norms and principles setforth by the Code, occupied an important place. National delegations furtheremphasised the relevance of transparency and the strengthening of civil controlof intelligence services.241

The comparison with the Partnership Work Programme 2000-2001 hasshown that the elements related to civilian control, direction and managementof armed forces are not directly reflected in either the Code or the Question-naire.242 However, the 1997 trial Questionnaire had requested informationrelated to (civilian) control and guidance of the armed forces and the establish-ment of ‘independent and objective’ expertise within the constitutionally estab-

added value with regard to both internal law on human rights and internationalhumanitarian law. David Raic: “The Code, Humanitarian Law, and Human Rights”,Cooperative Security, the OSCE, and its Code of Conduct. Edited by Gert de Nooy.The Hague, Kluwer Law International, 1996, p. 52. It might be of added value tothe already existing information exchange to add to the Questionnaire one or two‘Section VIII-Items’. While one new item could deal with the reflection of Code’scommitments in national security and defence policies and military doctrines asprovided by paragraph 35 of the Code, another new item could refer to items 36and 37 of the Code. Such an issue could deal with the specific regulations in theevent of internal security missions with a special emphasis on the protection of thehuman rights of the civilian population.

240 FSC.DEC/16/02, 27 November 2002, p. 1.241 Ibid.242 For instance: defence reform, transparency, and defence planning resource manage-

ment; democratic control of forces and defence structures, and the checks andbalances and interaction between constitutional authorities; reconciliation of therestructuring of the defence establishment with the military culture and tradition;civil-military cooperation and the military support of civilian authorities; conscriptionand the military’s role and image in the democratic civic society, as well asmobilisation and personnel issues and the role of reserve forces; civil-militaryinterface in defence ministries and the general balance of civil-military relations.

372 PART II

lished authorities. The enhancement of civilian expertise in defence mattersis generally considered a key requirement especially for reform in countriesof Central and Eastern Europe.243 Since the Partnership Work Programmecontains the stipulation that improvement in the implementation of the Codeof Conduct shall be discussed,244 further dialogue and more explicitcoordination between the exchange of information within the PfP programmeand the Code could add value for the implementation of the Code and alsoenhance transparency, effectiveness and efficiency with the informationexchange on the Code. Finally, the Questionnaire might more reflect second-generation criteria of democratic control of armed forces.

At the third follow-up conference on the Code, the participating states havestrongly supported the idea of further increasing awareness of the Code withinthe OSCE community and beyond.245 At OSCE sub-regional levels, the fieldmissions could play an important role in promoting awareness of the Code.246

Márton Kraznai has emphasised the mutual relationship between the democraticcontrol of the security sector and the functioning of democratic institutions andprocesses. Accordingly, there is also a need to further integrate projects pro-moting democratic control of armed forces into broader institution-buildingprogrammes:

“The implementation of the Code has been anchored firmly within the context ofconflict prevention, post-conflict reconstruction and broader institution-buildingefforts carried out by the OSCE. The OSCE’s missions and field activities, as the

243 See for instance: Chris Donnelly: “Reform Realities”, Post-Cold War DefenceReform; Lessons Learned in Europe and the United states. Edited by Istvan Gyar-mati and Theodor Winkler, Washington D.C., 2002, p. 37.

244 See chapter 1.4.4.245 FSC.DEC/16/02, 27 November 2002, p. 2. § 42 of the Code provides for the national

dissemination and publication of the Code. According to the Information Exchange1999-2002, most of the participating states have published the Code in their countriesand translated it into the national language. However, § 42 contains the stipulationthat the participating states shall disseminate and make known the Code as widelyas possible.

246 According to Theodor Winkler, the OSCE not only offers the largest membershipin the Euro-Atlantic area, but also considerable experience in security-relevant normbuilding through the Code of Conduct and confidence-building measures, as wellas a ’superb network of highly professional missions on the ground’. TheodorWinkler: Managing Change. The Reform and Democratic Control of the SecuritySector and International Order, DCAF, Occasional Paper, No. 1, Geneva 2002,p. 37.


front-line of the organisation’s work, help foster and develop political processesthat can prevent or resolve conflicts. Building democratic institutions, upholdingrespect for human rights and promoting the rule of law are all central tasks. Thepromotion of democratic control of the armed forces and transparency in defenceplanning, as well as the protection of the rights of individual service members, isall integral to these broader responsibilities. The relationship between the two isreciprocal. Full democratic control of the security sector is dependent on functioningdemocratic institutions and processes, but is also a necessary prerequisite for theestablishment and maintenance of such processes. Therefore, the OSCE is presentlydesigning an integrated approach. Accordingly, all OSCE programmes and projectspromoting democratic control of the armed forces shall be firmly embedded in thebroader, long term institution-building programmes of the Organisation.”247

Within the OSCE region, awareness of the Code’s regime on democraticcontrol of the security sector could be improved in NATO, PfP, EU, and theCouncil of Europe. Outside the OSCE, the awareness of the Code could beimproved in other regions like for instance amongst the Mediterranean Partners.On the global level, awareness of the Code should further be enhanced at theUnited Nations.248

After all, and given the complexity of information provided by the partici-pating states, awareness of the Code could also be enhanced within the partici-pating states themselves. Its cross-dimensional character invites and increasein awareness of the Code on relevant administrative, state and departmentallevels outside the armed forces and the ministry of defence. Given the Code’sconnection between security and democracy, awareness of the Code shouldgenerally be enhanced at parliamentary level, as well as within civil society,political parties, the media, non-governmental actors and the academic com-munity, as well as the defence security and defence community in general.

247 Márton Kraznai, Promoting democratic control of the armed forces in South-EastEurope, p. 24. According to Kraznai, these institution-building programmes include‘not only legislative and parliamentary reform but also local capacity-building inuniversities, research institutes and NGOs as well as political party development’.

248 According to Heiner Hänggi – an issue covering a whole chapter in the UN HumanDevelopment Report 2002 – its relevance for confidence-building is a matter ofincreased significance, as the linkages between security and governance should alsobe addressed from a disarmament perspective. Heiner Hänggi: Good Governanceof the Security Sector: Its Relevance for Confidence-Building. In: Heiner Hänggi(ed.): “Practical Confidence-Building measures: Does Good Governance of theSecurity Sector Matter?” DCAF Working Paper, No. 107. Geneva, 2003, p. 7.

374 PART II

Last but not least, the participating States themselves have gained, through-out four successive reporting years, an indispensable expertise and experienceboth with regard to the implementation of the Code in general, and the prepara-tion of the national reports in particular.249 The OSCE Forum for SecurityCooperation could therefore consider organising a stocktaking seminar onnational experience from the implementation of and exchange of informationon the Code, including aspects related to inter-agency and inter-departmentalcoordination, communication and information policies. The OSCE could thuscomplement its innovative expertise in the implementation of the Code withlessons learned from the exchange of information on this implementationprocess. The further development of this expertise could also become usefulto other parts of the world outside the OSCE region.

3.4 The 2003 and 2004 Information Exchange

New elements related to the 2003 information exchange:

The major shift within the 2003 information exchange as compared withthe reporting period 1999-2002, consisted of an enhanced reporting on terrorismdue to an amendment to item 1. The latter requires more detailed informationthan the corresponding item of the 1998 Questionnaire, although the mainquestion remains unchanged (“Appropriate measures to prevent and combatterrorism, in particular participation in international agreements to that end;referring to paragraph 6 of the Code of Conduct”). The participating States arenow requested to submit information on no less than five new sub-elements,which are as follows:

a) List of international agreements, including all United Nations conventionsand protocols related to terrorism, to which the participating State is a party;

b) Accession to and participation in other multilateral and bilateral agreementsor measures undertaken to prevent and combat terrorist activities;

c) National measures, to include pertinent legislation, taken to implement theinternational agreements, conventions and protocols cited above;

249 The presence of experts from the capitals apparently also enhanced the debate duringthe third follow-up conference (FSC.DEC/16/02, 27 November 2002, p. 1).


d) Information on national efforts to prevent and combat terrorism, includingappropriate information on legislation beyond United Nations conventionsand protocols (e.g., pertaining to financing of terrorist groups);

e) Roles and missions of armed forces in preventing and combating terrorism.

Formally, the participating States must now structure their reporting onterrorism in a more systematic way, which makes room for better comparativeassessments. However, only sub-item (e) on the roles and missions of armedforces in preventing and combating terrorism is really new. Moreover, itconstitutes the only added value provided for by the OSCE in comparison withthe UN-Questionnaire on terrorism. It also prolongs in a certain sense item 5of the 1998 Questionnaire related to the roles and missions of military, para-military and security forces. However, sub-item (e) does not establish an explicitlink with the issue of democratic political control of military and security forces.In any case, the sub-item is drafted in general terms and offers high flexibilityto the participating States to answer the question. Accordingly, the 2003 report-ing on sub-item (e) has been characterized by an extreme variety of answersin terms of quantitative and qualitative information, as well as with regard tothe reporting methodology. For instance, one country, after having extensivelyreported on sub-items (a) to (d), simply mentioned the URLs of two nationalwebsites providing information on the roles and missions concerning the minis-tries of defence and interior (including military doctrinal aspects and defencewhite paper information). Another national report devoted several pages to theroles and missions of all individual branches and bodies of the security sectorin the combat of terrorism. However, the participating States have generallyprovided relatively little information under Item 1 (e) compared with the othersub-items.

It should also be noted that in the framework of the 2003 informationexchange, the European Union forwarded a collective report submitted on itsbehalf by the Italian delegation.

New elements related to the 2004 information exchange:

In 2004, the participating States were requested to exchange informationon the basis of the updated 2003 Questionnaire. About two third of the partici-pating States actually reported on the basis of the new Questionnaire. The othersprovided information according to the old Questionnaire of 1998. In terms ofsubstance, the new Questionnaire is not dramatically different from the initial

376 PART II

Questionnaire. Actually, the latter’s ten items have been restructured and reducedto seven items for the sake of more consistent and target-oriented reporting,especially with regard to section VII issues (democratic control of armed forces).Even though the restructured Questionnaire has permitted more coherent report-ing and provides for a basis for better comparative analysis, its added valueis represented only by a new sub-item (2 b), which requests information ondefence expenditures. Interestingly, the reporting on that item reflects the samecharacteristics as those mentioned for sub-item 1 (e): The participating States’reporting is not homogenous and generally information is relatively scarcecompared to other items and sub-items of the Questionnaire. Thus, whileindividual states reported in detail on the national decision-making processesfor the determination of defence expenditures, many countries simply notedthe amount of money spent within the past fiscal year.

Another problem is the place where the item concerning the stationing ofarmed forces on foreign territory (new item 4, formerly item 3) is located. Itwould have been logical to place it right after item 1 on terrorism, since thetwo items concern inter-state norms. Moreover, and since the item has simplychanged its numbering but not its wording, it remains relatively isolated withinthe Questionnaire. It actually splits the information on democratic politicalcontrol artificially into two parts, even though these two parts are obviouslyinterlinked.

Suggestions concerning the improvement of the information exchange

The adoption of a Code of Conduct on Terrorism. A possible way to over-come the current imbalance between information on democratic politicalcontrol on the one hand and information regarding the international fightagainst terrorism on the other hand could be the elaboration of a separateQuestionnaire and, even, a Code on terrorism. Such a Code would offertwo major advantages. First, it would address the evolving threat of terror-ism and related security risks more comprehensively and dynamically.Second, the OSCE would contribute more pro-actively to the preventionof terrorism, related security challenges and their root causes.Further restructuring of the 2003 Questionnaire. The 2003 Questionnairecould be further restructured to better reflect the substance of the four pillarsof the OSCE regime on democratic control of armed forces. New itemsmight be added, for instance on the role and use of armed forces in the


event of internal armed conflict, as well as on civilian and political controlof paramilitary forces.Reconsideration of the issue of the stationing of armed forces on theterritory of another participating State. Given the high political relevanceof this issue, the corresponding item could require information on demo-cratic political control of such stationed forces.

BIBLIOGRAPHY

1) Exchange of Information on the Code of Conduct

- 1997 Tentative Questionnaire, FSC.DD/2/97, 1 October 1997.- 1998 Questionnaire, FSC.DEC./4/98, 8 July 1998.- 2002 Update of Item 1 of the Questionnaire, FSC.DEC/16/02, 27 November

2002.- 2003 Updated Questionnaire, FSC.DEC/4/03, 9 April 2003.- CPC Overview of the 2002 Information Exchange, FSC.GAL/102/02.- FSC Draft Decision Concerning the Overview of Responses to Item 1 of

the Questionnaire, FSC.DD/6/03, 24 June 2003.- 2003 CPC Overview of Responses to Item 1 of the Questionnaire,

FSC.GAL/113/03, 16 September 2003.

2) Follow-up Conferences on the Code of Conduct

- Third Follow-up Conference on the OSCE Code of Conduct on Politico-Military Aspects of Security, Vienna, 23-24 September 2002, ConsolidatedSummary, FSC.GAL/122/02.

- Third Follow-up Conference on the Code of Conduct on Politico-MilitaryAspects of Security: Survey of Suggestions, FSC.GAL/123/02, 8 October2002.

3) Books and Articles

- Dandeker, Christopher, The Military in Democratic Societies: New Timesand New Patterns of Civil-Military Relations, Jürgen Kuhlmann, Jean



380 BIBLIOGRAPHY (PART II)

Callaghan (editors): Military and Society in 21st Century Europe, Münster,Hamburg, London 2000, pp. 27-43.

- Donnelly, Chris, “Reform Realities”, Post-Cold War Defence Reform;Lessons Learned in Europe and the United states, Istvan Gyarmati andTheodor Winkler (eds.), Washington D.C., 2002, pp. 36-43.

- Hänggi, Heiner, “Good Governance of the Security Sector: Its Relevancefor Confidence-Building”, Heiner Hänggi (ed.): Practical Confidence-Build-ing measures: Does Good Governance of the Security Sector Matter?,DCAF Working Paper, No. 107. Geneva, 2003, pp. 7-12.

- Greenwood, David, “Transparency in defence budgets and budgeting”, TodorTagarev (ed.), Transparency in defence policy, military budgeting andprocurement, Geneva Centre for the Democratic Control of Armed Forces,George C. Marshall – Bulgaria, Sofia 2002. pp. 27-38.

- Kraznai, Márton, Promoting democratic control of the armed forces inSouth-East Europe: the role of the OSCE, EAPC/SEEGROUP Workshopon Civil-Military Interaction in Security Management: The Case of SouthEast Europe, Sofia, 27-28 June 2002, Centre for International SecurityPolicy, Federal Department of Foreign Affairs, Bern, September 2002,Collection of Documents, pp. 22-26.

- Parliamentary Oversight of the Security Sector; Principles, Mechanisms,Practices. Handbook for parliamentarians, No. 5 – 2003; DCAF/Inter-Parlia-mentary Union, Geneva 2003.

- Raic, David, “The Code, Humanitarian Law, and Human Rights”, Gert deNooy (ed.), Cooperative Security, the OSCE, and its Code of Conduct, TheHague (Kluwer Law International), 1996, pp. 41-55.

- Winkler, Theodor; Managing Change. The Reform and Democratic Controlof the Security Sector and International Order, DCAF, Occasional Paper,No. 1, Geneva 2002.

ANNEXES TO PART II

Annexes 1-6 provide illustrative model reports and summaries of information submittedby individual or groups of participating states related to items 2, 4 and 8 of the Question-naire. Annex 7 reproduces the updated 2003 Questionnaire.

ANNEX 1

REDISTRIBUTION OF TASKS AND RESPONSIBILITIES OF THE NATIONALAUTHORITIES IN DEFENCE PLANNING DECISION-MAKING AND THE DETER-MINATION OF THE MILITARY POSTURE IN AN EU AND NATO CANDIDATECOUNTRY250

Illustrative model report

Direct responsibilities of parliament:

Passes: the Defence Strategy;Decides: on Defence budget portions;Adopts: the Long-term Plan of Development of the armed forces;Discusses: and adopts the Annual Report of the government on the state of

readiness of the Defence sector, personnel policy implementation andthe overall state of the armed forces;

Surveys: the implementation of the Defence Plan, as well as conduct of defencepreparations through its respective bodies.

250 For more comments see chapter 2.1.1.4.



382 ANNEXES TO PART II

Responsibilities of the President: (In his function as the Supreme Commander of theArmed Forces)

Defines: the basis of command and control of the armed forces – on the pro-posal of the defence minister;

Develops: the Plan of Deployment of the armed forces;Approves: the proposed Defence Strategy; the proposed Defence Plan; the struct-

ure of commands, units and institutions of the armed forces;Passes: the Military Strategy; the Decision on the Size, Structure and

Mobilisation Development of the armed forces; the Decision onMilitary Territorial Division; the binding guidelines for buildingdefence readiness of the armed forces, proposed by the defenceminister, and in compliance with the Defence Strategy.

Responsibilities of the government:

Proposes: to parliament: the Defence Strategy; the defence budget; the Long-term Development Plan;

Delivers: the Annual Report on the state of Readiness of the Defence System,Forces, Personnel Policy Implementation and the overall state of theArmed Forces;

Passes: the Defence Plan.

Tasks assigned to the minister of defence:251

Defines: and coordinates, develops and implements the Defence Policy;Develops: the proposed Defence Strategy; the Annual Report on the state of

readiness of the Defence system, personnel policy implementationand the overall state of the armed forces; the Long-term Plan ofDevelopment of the armed forces; the Defence System;

Approves: the proposed Military Strategy;Proposes: the Defence Plan;Establishes: the structure of commands, units and institutions of the armed forces;Coordinates: Defence Plans developed by Defence subjects with the Defence Plan

(not further specified).Implements: the Defence planning function.

251 The report adds “the ministry of defence is entrusted with Defence tasks for the SupremeCommander (President) … related to his Defence responsibilities.”

ANNEXES TO PART II 383

The tasks of the General Staff:252

Cooperates: on Defence Strategy;Develops: proposals of Military Strategy; proposed Plans of armed forces de-

ployment; the proposed Decision on size, structure and mobilisationdevelopment of the armed forces; the segment of the Defence Planreferring to military equipment functioning (It is further stated that‘the defence minister approves the proposed Plan of deployment ofthe armed forces’).

Proposes: decisions on military territorial division; and implements the structureand commands, units and institutions of the armed forces; the devel-opment, equipment and modernisation of the armed forces; Cooperatesin planning, programming and developing the budget allocated forthe armed forces (not further specified by whom the budget is allo-cated).

ANNEX 2

ROLES AND RESPONSIBILITIES OF NATIONAL AUTHORITIES IN DEFENCEDECISION-MAKING AND THE DETERMINATION OF THE MILITARY POSTUREIN SOME OF THE CIS COUNTRIES253

Summary of information (1999-2002)

Role of the President:

Is: the Commander-in-Chief of the Armed forces;Composes: and chairs: The National Security Council;Chairs: activities for ensuring the military security of the country;Coordinates: activities of state organs in the field of defence;Conducts: negotiations and signs international or inter-state treaties; Adopts the

Plan on the development of armed forces, mobilisation plans andstrategic plans for armed forces deployment;

Approves: the organs of the state defence administration; as well as Plans forthe mobilisation of the national economy and administration on civildefence/territorial defence;

Issues: decrees on recruitment and release of the reserve;

252 The report expressly notes that the General Staff is ‘within the Ministry’ and that these tasksare ‘among others’.

253 For some comments see chapter 2.1.1.5.


Proclaims: general or partial mobilisation and state of war in the case of militaryattack against the country and submits these questions for examinationto parliament;

Introduces: state of emergency in individual regions, activates normative acts onthe state of emergency, takes decisions and gives orders to the armedforces on the conduct of armed activities;

Promotes: and dismisses: The highest Officials;Commissions: and decommissions: The highest military and special ranks;Submits: to parliament the: Project of military doctrine; Conception on the

military Development; state programme on military technical issues;Proposal for the general structure of the armed forces; Scope ofdefence expenditures and on the financing of the indicated pro-gramme; the state budget to be approved by parliament; Thecandidature of the Defence Minister.

Role of the Security Council:254

Prepares: the decisions of the President on ensuring the security of the citizens,society and the state; Proposals to the head of state, concerning theguidelines of strategic planning.

Role of parliament:

Establishes: the Defence Council of the country;Decides: on the possibilities of the deployment of armed forces outside the

territory of the country; the use of armed forces, ‘for which they werenot established’ (in accordance with guidelines of the President);Emergencies and state of war and peace agreements; Internal securitymissions in accordance with international obligations;

Declares: state of war in the case of aggression on the proposal of the Presidentin the case of armed external attack;

Adopts: laws on defence and national security; Laws regulating nationalplanning and the decision- making process;

254 Some CIS states reported that the ‘Security Council’ is the consultative organ of the Presidenton security and defence policy. While the ministries implement the decisions and guidelinesof parliament, the latter has also an agency for strategic planning and reforms. Another CIScountry reported that the ‘Supreme Security Council’ is an advisory authority chaired by thePresident, including the Prime Minister, Ministers of Defence, Interior and Foreign Affairs.Next to the Security Council, there usually exists a Defence Council established in parliament.


Controls: the use of resources allocated to defence through specifically createdauthorities and commissions as well as parliamentary hearings andinterpellations;

Examines: the Defence Budget in the Federal Council of the Federal Assembly;Analyses: the defence budget with a view to its compliance with the National

Security Concept and the Military Doctrine, as well as the economicframework and possibilities of the country;

Discusses: the Defence Budget Proposal article by article in several committeesand the Plenary Session;

Receives: From the President, reports of the Prime Minister and Defence Minis-ter on the state of defence;

Approves: the general structure, personnel strength, and missions of the armedforces, ‘completely funded by the state budget’ (The personnelstrength may comprise a ‘maximum of 0.8-0.9 per cent of the totalpopulation’); The state programme on the development of weaponsand military means; The military doctrine and concept of the develop-ment of the armed forces as well as of the ‘security services of otherparamilitary formations’ (including troops of the Ministry of Interior,are ‘put in place by law’); International and inter-state treaties onmilitary matters; General guidelines of cooperation with other statesin the military field; The appointment of the Defence Minister; Themilitary oath and military status;

Forms: the legal basis for the operation of the armed forces and allocatesresources by adopting the national budget.

Role of Cabinet:

Is responsible: for the condition and shape of the armed forces;Determines: the organisational structure and personnel strength of the armed

forces;Manages: the activity of all of the organs and organisations on defence, which

are subordinated to it, including the equipment of the armed forces,and ensures material means in this respect;

Submits: proposals on defence expenditures to the President and is responsiblefor the condition and shape of the armed forces; the draft budget toparliament for approval;

Organises: the procurement of weapons and military technical means andmunitions, to the armed forces is responsible for the condition andshape of the armed forces; General Plans for civil and territorialdefence;

Prepares: the mobilisation of the national economy for the transition into a stateof war and emergency regime and takes appropriate decisions in thisrespect, is responsible for the condition and shape of the armed forces;


Ensures: the implementation of the legal framework related to social care ofmilitary personnel, reservists or pensioners and their families, isresponsible for the condition and shape of the armed forces; imple-mentation of the defence, national security and foreign policies;

Coordinates: the development of, and approves guidelines for, military planning;

Role of minister of defence:

Proposes: the organisational structure, personnel strength and supply of thearmed forces

Elaborates: the conception of the structure of the armed forces; Proposals ondefence expenditures of the MoD according to allocated resourcesand submits these proposals to the government, which, after examin-ing it, submits it to parliament;

Coordinates: the elaboration also of paramilitary and other organs related todefence;

Prepares: the basis and conditions for the decision on defence taken by parlia-ment;

Participates: in the elaboration and proposals on military policy and military doc-trinal matters; the projects on military doctrine and the formulationand creation of the military budgets; the military planning and devel-opment of guidelines for determining the military posture;

Submits: projects for state programmes and development of the armed forces,development of armament and military-technical means as well asproposals on the means for fulfilling defence needs, , for examinationto the President;

Manages: procurement, manufacturing , etc. of military means and other militaryproducts and takes part in the execution of the control of its develop-ment, tests and quality;

Guides: the preparation of the troops for combat, operational tactics and moraland psychological readiness; The development of military science,conducts military scientific research;

Appoints: and commissions (in the limits of its competences): Military officers.

Role of the General Staff:

Elaborates: proposals on Military Doctrine and on the plan of the structure ofthe armed forces; Proposals on the Federal Budget on Defence;

Coordinates: the elaboration of plans on the structure and development of armedforces, other troops as well as paramilitary troops and organs.


ANNEX 3

COMPETENCIES AND RESPONSIBILITIES OF NATIONAL AUTHORITIES INA NEWLY-ADMITTED NATO MEMBER COUNTRY255


National Assembly:

Is: the main body for political guidance and control over the armedforces, which is exercised either directly or through its control overthe government. In accordance with legal and constitutional pro-visions;

Adopts: Laws concerning the armed forces; the National Security Conceptand the Military Doctrine;

Controls: the actions of the government, including by means of parliamentaryinterpellation; the formation and spending of the defence budget, thesize, structure and number of personnel of the armed forces.

Declares: War and Peace, Martial Law or State of Emergency on the territoryof the country; Sending and use of troops abroad; Entry and stationingof foreign troops on national territory.

Ratifies: International treaties (which are of military of political character).

Parliamentary Committee on National Security:

Is in charge: of the working contacts and consultations with the institutions of theexecutive branch of government.

President (in his competence as supreme commander-in-chief of the armed forces):

Approves: the strategic plans of the armed forces;Appoints: (and discharges from their positions) the high command personnel

of the armed forces;Chairs: the Consultative Council on National Security.Is empowered: to declare a state of war, martial law or other state of emergency

when the National Assembly is not in session.

255 The national return has emphasised the principle of democratic political control of the armedforces and the clear division of competencies and responsibilities. For more comments seechapter 2.1.3.2.


Council of Ministers:

Exercises: the closest control over the overall functioning of the armed forces.Is accountable to the parliament for the security and defence policyof the state. Being a central organ of the executive power, it co-ordinates the activities of its subordinate bodies related to defenceand security. The Constitution clearly defines the competences of thegovernment in ensuring public order and national security and gen-erally directing the armed forces. According to the Defence Law, thegovernment:

Adopts: normative acts on defence;Approves: the structure of the army;Proposes: appointments of the senior command staff to the President.

National Security Council:256

Is headed: by the Prime Minister as a consultative body on National Security;Provides: support to the Council of Ministers;Consists of the: Minister and Deputy Minister of Foreign Affairs; Minister and Deputy

minister of defence; Minister of the Interior and Chief Secretary ofthe Ministry of Interior; Chief of the General Staff of the armedforces; Director of the National Intelligence Service; Director of theNational Security Service.

Summarises: analyses and draws conclusions on the basis of all available informa-tion as to possible risks to national security and proposes possibleactions. The decisions of the Security Council can be presented bythe Prime Minister, and approved by the government, when there isa need to adopt a normative act.

Interacts: closely with other bodies competent in national security, eg in thecase of the preparation of the annual Report by the government onthe state of the country’s national security. Indeed, the work of theSecurity Council is a consensus-based civil-military interaction andan additional tool for effective democratic control over the armedforces in cases of crisis.

Minister of defence:

Is: a civilian;Implements: democratic control by law.Is in charge: of the implementation of defence policy;

256 Established by the government in accordance with the National Security Concept.


Performs: general leadership of the armed forces. The minister of defence:Is responsible: for the personnel policy of the armed forces;Appoints: decommissions, promotes and dismisses the officers for the military

service;Allocates: the defence budget;Develops: general economic and social policy of the ministry of defence.

Chief of General Staff:257

Assists: the Minister of Defence in performing his duties together with theDeputy minister of defence.

Defence Council:

Is headed: by the minister of defence;Acts: as a consultative body for consensus-based decision-making on the

ministerial level.

Constitutional Court:

Carries out: civilian control through its decisions and interpretation of constitu-tional law related to the armed forces.

257 With recent Amendments to the Defence Law, more precise divisions of the responsibilitiesbetween the minister of defence and Chief of Defence Staff have been defined, while theimplementation of the principle of civil control over the armed forces has been improved.


ANNEX 4

COMPETENCIES AND RESPONSIBILITIES OF NATIONAL AUTHORITIES INTHE FIELD OF DEMOCRATIC CONTROL OF THE ARMED FORCE IN SOMEOF THE ESTABLISHED DEMOCRACIES, AS WELL AS SOME OF THE NATO/EUCANDIDATE COUNTRIES OF EAST-CENTRAL EUROPE258

Summary of information

Parliament: (National Assembly, including both Chambers)

Has: the power of a vote of no confidence in the Prime Minister and anyof his Cabinet members, including the minister of defence;

Provides: oversight of the defence budget and directs and supervises forcedevelopment in peacetime, crisis circumstances and war;

Decides: on Policy, development and other fundamental defence issues;Approves: the budget and national security programmes;Develops: Work guidelines and issues political directives for the operations of

the MoD Intelligence and Security Agency;Scrutinises: Bills and proposals on defence issues for parliamentary resolution

through the defence committee (Standing Committee dealing solelywith defence issues and encompassing all parties represented inparliament).

Monitors: the defence readiness and decides upon the state budget during a stateof war’;

Participates: in the preparations of the legal framework through the parliamentaryDefence and Security Commission;

Prepares: Business relating to military defence, civil protection, national eco-nomic defence, peace and security policy, alternative civil serviceand the export of military equipment, and supervises administrativeactivities. Their task and competencies are listed in the businessregulations of both chambers of parliament’.

Parliamentary Committees and Commissions:

- Defence Committee;- Board for the Oversight over Security and Intelligence Agencies;

258 For more comments see chapter 2.1.3.2. The information exchange shows that detailed andtarget-oriented information is also submitted by emerging democracies. Respective reportsare sometime even more detailed and comprehensive than those of the established democracies.The candidate countries for NATO and EU membership especially have generally submitteddetailed information under item 4 of the 1998 Questionnaire.


- Committee for Finance, Credit and Monetary Policies;- Committee for the Oversight over Budget and Other Public Finance;- International Relations Committee;- Committee for the Monitoring of the Implementation of the Resolution on the

Starting Points of the National Security Concept of the Republic;- Parliamentary Defence and Security Commission- Committee for Defence and Security- Security Policy Commission

Ombudsman/Commissioner for the Armed Forces:

Has: the right of Legal control of all authorities.

President: (or Head of state, including the Queen/ King)

Is: the Commander in Chief of the Armed Forces; The Chairperson ofthe Security Council;

Chairs: the Supreme Defence Council;Declares: a state of war decided upon by the Chambers of parliament;Decides: on readiness measures regulating, organising and improving the

military, including on related documents on implementation of readi-ness measures’.

President in his function as the Commander-in-Chief of the armed forces:

Determines: the specific functions and missions for separate regular force branches,combined units and independent units consistent with defence plansand needs’.

Government/ Cabinet:

Has: supreme authority over the armed forces;Formulates: Defence policy;Appoints: the Chiefs of Staff and decides on all serious foreign and defence

matters.

Defence/ Security Council: (state Defence Council; Council for Foreign and DefenceAffairs, etc.)

Considers: and coordinates the main issues of national defence.


Composition of Defence and Security Councils:

- President;- Prime Minister;- Chairman of the parliament;- Defence Minister;- Commander-in-Chief of the armed forces

Ministry/ Minister of Defence: (Minister of National Defence; Secretary of state forDefence, etc.)

Is responsible: for the management and direction of all matters relating to nationaldefence; the formulation of defence policy and ultimately for theconduct of all military operations;

Determines: the overall defence policy;Implements: Defence Policy, according to guidelines and decisions of the govern-

ment;Develops: Concepts and plans for the army;Represents: the political management of the Defence Policy.

General Staff/Chief of General Staff: (Chief of Defence Staff; Chief of Defence GeneralStaff, etc.)

Represents: Military, professional and expert management and is responsible forcommand and training of the army in peacetime;

Charged: with Command, control and administration of all armed forces.

ANNEX 5

CIVILIAN CONTROL EXERCISED THROUGH PRESIDENTIAL, PARLIAMENT-ARY AND JUDICIAL CONTROL IN TWO CAUCASUS COUNTRIES259


System of presidential control:

According to the Defence Law, military forces consist of a) Armed forces; b) Bordertroops; c) Internal troops; d) Other armed units, established under the rules of thelegislation. Management of the armed forces is realised by the ministry of defence, ofthe Border troops by the state Department of Border Guards, of the internal troops by

259 For more comments see chapter 2.1.3.2.


the Minister of Internal Affairs with the help of the Commander of Internal Affairs.The Ministry of State Security, the state Department of Intelligence and Special Serviceof State Protection, within the frames of their competence, ensure state security ingeneral. The above-mentioned bodies represent the governmental institutions; theirministers or chairmen are the relevant members of the government, accountable to thePresident. The President is the Supreme Commander-in-Chief of the Armed Forces.

Role of the President:

Is: the guarantor of the national independence, territorial integrity andsecurity of the country; the Commander in Chief of the armed forcesand appoints the highest command staff of the armed forces;

Forms: and presides over the National Security Council;Issues: Special orders for call-up of personnel for military service;Decides: on the use of the armed forces, as well as in case of armed attack

against, or an immediate danger to, the country, or a declaration ofwar by parliament, the President declares a state of martial law andmay call for a general or partial mobilisation;

Takes measures: appropriate to the situation and addresses the people on the subjectin case of imminent danger to the constitutional order, and uponconsultations with the Chairman of parliament and the Prime Minister.

System of parliamentary control:

Members of the government, including the leadership of the above-mentioned ‘lawenforcement bodies’, are appointed to their posts by consent of the parliament on thecandidatures of members of the government, nominated by the President. Furthermore,the parliament enjoys the right to apply to a member of the government with anyquestion in writing; the latter is obliged to present a detailed reply to the parliament.The parliament is also authorised to invite a member of the government to the govern-mental hour and hold his parliament hearing. In compliance with the Law on parlia-mentary Committees, the relevant committees are established with a view to carryingout control in certain spheres in the parliament, including the sphere of Defence andSecurity. The committees, in connection with the issues of the relevant spheres, shallactively cooperate with the appropriate governmental institutions: shall invite membersof the government and conduct Committee hearings on certain issues.

Role of parliament:

Declares: War upon the recommendation of the President;Holds: Special sittings upon the declaration of martial law (by the President);Suspends: the execution of the President’s decision on the use of the armed

forces, declaration of a state of martial law and call for a general or


partial mobilisation upon the determination of the ConstitutionalCourt; The execution of the President’s decision to take measuresappropriate to the situation in case of imminent danger to the constitu-tional order, upon the determination of the Constitutional Court.

System of Judicial control:

In cases stipulated by the Constitution the question of impeachment of a memberof the government can be brought up, the final decision on the case shall be made bythe judicial authority.

Role of the Constitutional Court:

Decides: on whether the laws, resolutions of parliament, orders and decreesof the President and resolutions of the Cabinet of Ministers are inconformity with the Constitution;

Determines: whether there are grounds for the application of provisions on thePresident’s decision on the use of the armed forces and, in case ofimminent danger to the constitutional order, on the President’s de-cision to take measures appropriate to the situation.

ANNEX 6

OFFICER AND CONSCRIPT TRAINING AND EDUCATION IN IHL IN ONEESTABLISHED DEMOCRACY AND EU MEMBER STATE260


Training and education programme for officers:

A first and basic degree of training should put an officer in a position to have agood command of the Code of Conduct and understand the requirements set for a combatsituation and for the planning and command of a company- (or battalion-) level unitof his own branch in a combat. Training in the Code of Conduct is part of the basiccourse on management of legal aspects of service, including conscription matters andexercises in leadership and tactics.

After a further and continuing training and education stage, an officer should havea good command of the Code of Conduct and understand the requirements for a combatsituation and for the operational planning and command of a formation in a combat.The training in the Code of Conduct is part of the course on the general administration

260 For more comments see chapter 2.2.2.


including legal affairs and the exercises in operational skills and tactics. Later on, anofficer should have a good command of the Code of Conduct and understand therequirements for the operational planning and command of the troops in a combat. Herethe training on the Code of Conduct is part of exercises in operational skills and tactics.

Persons participating in the continuation training in the Code of Conduct are, inthe first place, those involved in operational planning, in teaching the Code of Conductor otherwise in need of the training. The military lawyers at the Defence Staff, ServiceHead Quarters and Command Head Quarters are the experts on the Code of Conduct.A considerable number of officers and civilians from the Defence Forces participateannually in a course on the Geneva Conventions arranged twice per year by the NationalRed Cross. The Defence Forces send on an annual basis a few participants to the courseson the Code of Conduct in San Remo, as well as to the Swiss Workshop on the Codeof Conduct arranged by the Swiss General Staff and the Swiss Military College,261

and a course on the Law of Armed Conflict for senior officers of the armed forcesmedical services arranged by the International Committee of Military Medicine.

Training and education programme for Conscripts:

The (same) illustrative model report has also reported in detail on conscript trainingin IHL. Again, the Code of Conduct plays an important role in this regard. It is statedthat the aim of this training is to ensure that conscripts are fully familiar with the Codeof Conduct in accordance with Article 83 of the 1997 Protocol I additional to the GenevaConvention. The training includes the basics of the Code of Conduct, the set of rulesfor the soldier and internationally recognised distinctive emblems. Each soldier is givena copy of the Manual, which deals with the essential matters from the soldier’s pointof view. Familiarisation with the Code of Conduct takes place, as part of the trainingin security policy, during the basic training period for all conscripts.

The combatant’s training during the special training period includes the Code ofConduct in the activities of the soldier. The Information Division of the Defence Staffhas compiled the teaching material on security policy, which also includes the materialfor teaching the Code of Conduct. This material covers instructions for the teacher, slidesand videotape. This material is used down to company-level units. In addition, trainingprogrammes and plans for conscripts completing military service include subjects suchas: Legal provisions related to military service: rights and obligations during militaryservice, including conscientious objection to military duty; Introduction to InternationalMilitary Law, including to the Conventions that prohibit the use of certain weapons;Training programmes and plans for reserve components and their units.

261 The ‘Swiss PfP Workshop on the Code of Conduct’ has been organised six times so far (1998-2004).


ANNEX 7

THE UPDATED QUESTIONNAIRE 2003262

Participating states will supply relevant information (including documents whereappropriate) on the following items:

1. Appropriate measures to prevent and combat terrorism, in particular participationin international agreements to that end (Paragraph 6):

(a) List of international agreements, including all United Nations conventions andprotocols related to terrorism, to which the participating state is a party;

(b) Accession to and participation in other multilateral and bilateral agreements ormeasures undertaken to prevent and combat terrorist activities;

(c) National measures, to include pertinent legislation, taken to implement the inter-national agreements, conventions and protocols cited above;

(d) Information on national efforts to prevent and combat terrorism, including appropri-ate information on legislation beyond United Nations conventions and protocols(eg pertaining to financing of terrorist groups);

(e) Roles and missions of armed and security forces in preventing and combatingterrorism;

2. Description of the national planning- and decision-making process – including therole of the parliament and ministries – for the determination/approval of (Paragraphs13, 22):

(a) The military posture;(b) Defence expenditures;

3. Description of (Paragraphs 20, 21, 22):(a) Constitutionally established procedures ensuring effective democratic control of

the military, paramilitary, and internal security forces, as well as intelligenceservices, and the police;

(b) Constitutionally established authorities/institutions responsible for the democraticcontrol of military, paramilitary and security forces;

(c) Roles and missions of the military, paramilitary and security forces as well ascontrols to ensure that they act solely within the constitutional framework;

(d) Public access to information related to the armed forces;

4. Stationing of armed forces on the territory of another participating states in accord-ance with their freely negotiated agreements as well as in accordance with inter-national law (Paragraph 14);

262 FSC.DEC/4/03, 9 April 2003. For more comments see chapter 3.2.1.


5. Description of (Paragraphs 27, 28, 33):(a) Procedures for the recruitment or call-up of personnel for service in the military,

paramilitary or security forces, if applicable;(b) Exemptions or alternatives to compulsory military service, if applicable;(c) Legal and administrative procedures protecting the rights of all forces personnel;

6. Instruction on international humanitarian law and other international rules, conven-tions and commitments governing armed conflict included in military trainingprogrammes and regulations (Paragraphs 29, 30);

7. Any other information

INDEX TO PART I*

AAccidental (or unauthorized) use of military means, safeguards against: General

Introduction (p. 9); § 24. See also Vienna Mechanism for consultation and co-opera-tion as regards unusual military activities.

Accountability of armed forces personnel under national and international law:General Introduction (p. 9); § 30; § 31.

Additional Protocols (1977) to the 1949 Geneva Conventions on internationalhumanitarian law: § 29; § 31; § 34.

Afghanistan: OSCE Asian “Partner for co-operation” (§ 3).Aggressor State, non assistance or support to an: General Introduction (p. 7); § 8.Albania: collapse of (§ 5); and democratic control of armed forces (Introduction to

Section VII n 129).Algeria: OSCE “Mediterranean Partner for co-operation” (§ 3).Alliances, right of States to belong or not to belong to: § 11.Annual Assessment Implementation Meetings (AIAM): § 36; § 38.Anti-personnel landmines: Introduction to Section V (n 113).Armed forces: accountability of armed forces personnel under national and international

law (General Introduction, p. 9; § 30; § 31); transparency of and public access toinformation related to – (§ 13; § 22); stationing of armed forces on foreign territory(§ 14; § 38); integration of the – with civil society (§ 20); control and accountabilityof (§ 22); political neutrality of – (§ 23); overthrow by – of a legitimately electedgovernment (§ 23); usurpation of political control by – (§ 23); irregular – (§ 25);rights and duties of the personnel of – (§ 28; § 31); dissemination of internationalhumanitarian law within – (§ 29); instruction of – in international humanitarian law

* Main references are related to specific paragraphs of the Commentary; references in italicsconcern the General Introduction to the Commentary and Introductions to Sections of thelatter.



400 INDEX TO PART I

(§ 30); unlawful orders to – (§ 31); commandment, manning, training and equipmentof – in accordance with the norms and prescriptions of international humanitarianlaw (§ 29, § 34, § 35); assignment of internal security missions to – (§ 36); domesticuse of armed forces (§ 37, § 38). See also, Intelligence services, Internal securityforces, Paramilitary forces, Police forces.

Arms control and disarmament: General Introduction (p. 7); § 2; § 15; § 16.Arms trafficking: General Introduction (p. 4).Arms transfers: Introduction to Section V (n 113); § 16.Austria: and servicemen’s right to association (§ 28).Austria, joint proposals of – with Hungary on: a Code of Conduct (General Introduc-

tion, p. 4); title of Code of Conduct (n 34); economic/environmental dimension ofsecurity (n 36); the Code of Conduct’s rationale (2nd paragraph of the Preamble);interlocking institutions (§ 4); solidarity principle (§ 5 n 73); terrorism (§ 6 n 81);commensurability of military capabilities with individual or collective security needs(§ 12 n 102); stationing of armed forces on foreign territory (§ 14); peacekeeping(§ 18); democratic control of armed forces (§ 20); usurpation of political controlby armed forces (§ 21, § 23); democratic control of armed forces’ rationale (§ 21n 144); intelligence services and the police (§ 21 n 145 and n 146); political neutral-ity of armed forces (§ 23 n 155); usurpation of political control by armed forces(§ 23 n 157); irregular armed forces (§ 25 n 162); conscientious objection (§ 28n 173); state of public emergency (§ 36 n 202); national minorities (§ 37); peacefulevolution of States (§ 37); prohibition of forceful resettlement of populations (§ 37n 219); prohibition of modification by force of internal boundaries (§ 37 n 219).

Austria, joint proposals of – with Hungary and Poland: follow-up arrangements tothe Code of Conduct (General Introduction, p. 4; § 38).

Azerbaijan: and Nagorno-Karabakh (§ 14); and servicemen’s right to association (§ 28).See also GUAM countries.

BBaltic States: 5th paragraph of the Preamble (n 48); § 14.Belarus: § 15 of General Introduction (p. 13, n 29); § 38.Belgium: and the French-German initial proposal for a Code of Conduct (General

Introduction, p. 2, n 3).Berlin Mechanism for consultation and co-operation with regard to emergency

situations (1990): § 38.Bishkek Conference on Strengthening Comprehensive Efforts to Counter Terrorism

in Central Asia (2001): § 6.Boundaries, internal – see Prohibition of modification by force of internal boundaries.Bucharest Plan of Action for Combating Terrorism (2001): § 6.Border guards: General Introduction (p. 13); § 20.Bosnia and Herzegovina: § 4; § 18; § 31; § 42.Budapest Decisions 1994: General Introduction (p. 6); 5th paragraph of the Preamble;

§ 4.

INDEX PART I 401

Budapest Document 1994 (“Towards a Genuine Partnership in a New Era”): 5thparagraph of the preamble (n 48); § 39.

Budapest Review Meeting (1994): General Introduction (p. 5).Budapest Summit Declaration (1994): General Introduction (p. 6, n 15); 5th paragraph

(n 49); Introduction to Section II (n 80).Bulgaria: and co-sponsorship of the French-German initial proposal for a Code of

Conduct General Introduction (p. 2, n 3).

CCall-up of armed forces personnel in accordance with human rights obligations:

§ 27; § 38.Canada: and co-sponsorship of European Union’s draft proposal for a Code of Conduct

(General Introduction, p. 2, n 3); and trial Questionnaire on the Code of Conduct(§ 38).

Caucasus States: democratic military transition in the – (§ 42).Central Asian States: democratic military transition in the – (§ 42).CFE-1A Agreement (Concluding Act of the Negotiation on Personnel Strength of

Conventional Armed Force in Europe, 1992): § 15.CFE Treaty (Treaty on Conventional Armed Force in Europe, 1992): § 12; §13;

§ 15.Charter on Fundamental Rights of the European Union (2000): § 28.Charter of Paris for a New Europe (1990): General Introduction (p. 7); 4th paragraph

of the Preamble; § 3; § 10, § 10; n 94; Introduction to Section II (n 80).Charter of the European Union on Fundamental Rights (2000): § 28 n 174.Charter of the United Nations: 3rd paragraph of the Preamble; § 8; § 9; § 11; § 12;

§ 14, § 39, n 246.Chechnya: General Introduction (p. 13); § 36.Chemical Weapons Convention (1993): § 15; Introduction to Section V (n 113).Citizens in uniform: p. 11 of Introduction; § 28.Civil authorities – see Constitutionally established authorities vested with democratic

legitimacy.Code of Conduct on Politico-Military Aspects of Security: controversial issues in

the drafting process of the (General Introduction, p. 6; § 4 n 65; § 14 n 106);innovative provisions of the (General Introduction, p. 7; 5 n 78; § 12 n 98); Nether-lands and need for a “Manual” on the (General Introduction, n 33); (2nd paragraphof the Preamble); and undiminished status of existing international law principles(3rd paragraph of the Preamble); and undiminished status of existing OSCE commit-ments (4th paragraph of the Preamble); inter-State norms of the (General Introduction,pp. 7-8; § 1 to § 19); intra-State norms of the (General Introduction, p. 7; § 20to § 37); implementation arrangements and final clauses of the (§ 38 to § 42); dateof entry into force of the (§ 39); politically binding nature of the (§ 39); reflectionof the commitments of the – in national defense legislation and national documents,

402 INDEX TO PART I

procedures or legal instruments (§ 41); publication and dissemination of the – atnational level (§ 42); training Seminars on the – (§ 42); translation of the – innational language (§ 42).

Code of Conduct for Law Enforcement Officials (1979) – see United Nations.Commandment of armed forces personnel in accordance with international human-

itarian law obligations: General Introduction, p. 9; § 29; § 34; § 35.Commensurability of domestic use of force with the needs for enforcement.Commensurability of military capabilities with individual or collective security

needs: § 12; § 13; § 36.Common Foreign and Defense Policy (CFSP): General Introduction (p. 3).Common Security: § 3, § 4 n 61;Commonwealth of Independent States (CIS): § 4 n 68.Comprehensive security: General Introduction (pp. 6-7); 2nd paragraph of the Preamble,

§ 2, § 3, § 4.Concluding Document of the Madrid Follow-up Meeting (1983): Introduction to

Section II (n 79).Concluding Document of the Vienna Follow-Up Meeting (1989): Introduction to

Section II (n 79); § 38.Conflict management and/or prevention: General Introduction (p. 7); § 2; § 17, § 18;

§ 19.Conflict Prevention Centre: § 41; § 42.Conscientious objection to military service: § 27, § 28.Conscripts: rights and duties of –: § 23; § 27; § 28; § 32; § 33; § 38; respect of the

human rights and fundamental freedoms of the armed forces personnel: GeneralIntroduction (pp. 8, 10, 11; § 23; § 27; § 28; § 32; § 33); legal status of – in theCouncil of Europe area (§ 28).

Consensus minus one: § 38.Constitutionally established authorities vested with democratic legitimacy: control

of – over armed forces: General Introduction (p. 8 and 10); Introduction to SectionVII; § 20; § 21; § 22, § 23; § 24; § 25; § 26.

Convention for the Protection of Cultural Property in the Event of Armed Conflict(14 May 1954) – see Hague Convention for the Protection of Cultural Propertyin the Event of Armed Conflict.

Convention on the Use of Certain Conventional Weapons (10 October 1980): § 34.Co-operative security: General Introduction (p. 7); 2nd paragraph of the preamble; § 3;

§ 4; § 38. See also Indivisibility of security.Copenhagen Criteria (1993) of the European Union: General Introduction (§ 15).Copenhagen Document on the human dimension (29 July 1990): Introduction to

Section VII; § 28; § 36.Council of Europe: “Declaration on the Police”, 1979 (General Introduction, p. 1;

§ 20); “European Code of Police Ethics” (§ 20); European Code of professionalethics for the armed forces” (§ 20); Parliamentary Assembly’s Recommendation

INDEX PART I 403

1402 of 1999 on “Control of internal security services in Council of Europe memberStates” (General Introduction, p. 1; § 20); legal status of conscripts in the Councilof Europe area (§ 28; § 32); Parliamentary Assembly’s Resolution 1166 of 1998on human rights of conscripts (§ 28); Parliamentary Assembly’s Resolution 1572of 2002 on the right to association for members of the professional staff of the armedforces (§ 28); Parliamentary Assembly’s Resolution 903 (1998) on the right toassociation for members of the professional staff of the armed forces (§ 28);Committee of Ministers’ Recommendation No R (87) 8 on conscientious objection(§ 28 n 174); Parliamentary Assembly’s Order 132 of 1997 and Recommendation1518 of 2001 on conscientious objection (§ 28).

Croatia: disproportionate domestic use of force in (General Introduction, p. 13); andservicemen’s right to association (§ 28).

CSBM (Confidence- and Security-Building Measures): (General Introduction, p. 7);§ 2; Introduction to Section V; § 15; § 16; § 22; § 24; § 35 n 193; § 38 n 223.

CSCE (Conference on Security and Co-operation in Europe): name change from– to OSCE (§ 39). See also OSCE.

Czech Republic: and servicemen’s right to association (§ 28).

DDayton Framework Agreement on Peace in Bosnia and Herzegovina (1995): § 4;

§ 18.Decalogue – see Helsinki Decalogue.Decision on Guidelines on an OSCE Document-Charter on European Security –

see Guidelines.Declaration on the Police (1979) – see Council of Europe.Declaration on Principles Guiding Relations between Participating States (1975)

– see Helsinki Decalogue.Dedovshina: § 28.Defense expenditures – see Military expenditures.Defense planning: General Introduction, § 14; § 22.Defense policy and doctrine: consistency of – with international humanitarian law and

the Code of Conduct (§ 35).Democratic control of armed forces: rationale of – (General Introduction pp. 9-10,

pp. 13-14; § 20; § 21, § 22); shortcomings in the Code of Conduct’s regime on –(General Introduction p. 8); from the executive branch (General Introduction pp. 11-13; Introduction to Section VII; § 21 n 144); – from the legislative branch (GeneralIntroduction pp. 8 and 11; § 13; Introduction to Section VII; § 21 n 144; § 22);– from the judiciary branch (General Introduction p. 11); Albania and – (Introductionto Section VII, n 129); Huntington’s distinction of “objective” or and a “subjective”type of – (Introduction to Section VII, n 130); absence of definition of the concept– in the Code of Conduct (§ 20); Joint US-Hungarian proposal on civilian controlover military and security forces (Introduction to Section VII); Hungarian proposals

404 INDEX TO PART I

on the – (General Introduction, p. 4); § 20 n 134); 1991 Moscow Document pro-visions on – (§ 21 n 143). See also Armed forces, Council of Europe and Rule oflaw.

Denmark: and co-sponsorship of European Union’s draft proposal for a Code ofConduct (General Introduction, p. 3, n 3); and servicemen’s right to association(§ 28).

Disarmament – see Arms control and disarmament.Document on Small arms and light weapons (2000): Introduction to Section V (n

113).Document of the Stockholm Conference on CSBM and Disarmament in Europe

(1986): Introduction to Section II (n 79).Domestic use of armed forces: General Introduction (pp. 1, 10 and 12); § 36; § 37.Drugs trafficking: General Introduction (p. 4).

EEconomic and environmental dimension of security: General Introduction (pp. 4

and 7); 2, § 4 n 65; § 14 n 104; § 17.Equipment of armed forces personnel in accordance with international human-

itarian law obligations: General Introduction (p. 9); § 29; § 34; § 35.Estonia: and co-sponsorship of the French-German initial proposal for a Code of

Conduct (General Introduction, p. 2 n 3).Ethnic minorities: § 37 n 218.European Code of Police Ethics – see Council of Europe.European Code of Professional Ethics for the Armed Forces – see Council of Europe.European Convention on Human Rights: § 20; § 28.European Council of Conscripts Organizations (ECCO): § 28.European Union: and the French-German initial proposal for a Code of Conduct

(General Introduction p. 2, n 3).European Union, Charter of the – on Fundamental Rights (2000), see Charter of

the European Union on Fundamental Rights (2000).“European Union plus” group of States: proposal for a Code of Conduct (General

Introduction p. 3); and title of the Code of Conduct (n 34); and the Code of Con-duct’s rationale (2nd paragraph of the Preamble); and terrorism (§ 6); andcommensurability of military capabilities with individual or collective security needs(§ 12 n 100); and the stationing of armed forces on foreign territory (§ 14); andthe implementation of arms control and disarmament regimes in crisis situations(§ 15); and non-proliferation and arms transfers (§ 16); and peacekeeping (§ 18);and humanitarian assistance in conflict situations (§ 19); and usurpation of politicalcontrol by armed forces (§ 21; § 23); and political neutrality of armed forces (§ 23n 155); and irregular armed forces (§ 25); and Chechnya (§ 36); and state of publicemergency (§ 36 n 202); and domestic use of force (§ 36 n 214); and peacefulevolution of States (§ 37 n 217); and the prohibition of modification by force of

INDEX PART I 405

internal boundaries (§ 37 n 219); and forceful resettlement of populations (§ 37 n219); and breaches to the Code of Conduct (§ 38); and ad hoc follow-up conferenceson the Code of Conduct (§ 38); and compulsory exchange of information on theCode of Conduct implementation (§ 38 n 227); and review of implementation ofthe Code of Conduct on a regular basis (§ 38 n 227); and unlimited duration of theCode of Conduct (§ 39); and the Code of Conduct’s dissemination (§ 42); and thefostering of relations with OSCE non-participating States through the Code ofConduct (§ 42 n 259).

Exchange of information on the Code of Conduct: § 38. See also Follow-up Confer-ences on the implementation of the Code of Conduct.

Executive branch, control of the – over armed forces: General Introduction (p. 8);Introduction to Section VII; § 21 n 144.

FFinland: and servicemen’s right to association (§ 28); as depositary of the Helsinki

Final Act (§ 39 n 250).Follow-up conferences on the Code of Conduct implementation: § 23; § 26; § 36

n 200; § 38.Forum for Security Co-operation: 2nd paragraph of the Preamble; § 6; Introduction

to Section V (n 113); § 11; §§ 13; § 14; § 28.France: French pan-European security Treaty project (General Introduction, p. 2);

French-German initial proposal for a Code of Conduct (General Introduction, p. 2);French working document on the Code of Conduct’s structure (General Introduction,p. 4); and interlocking institutions (§ 4); and servicemen’s right to association (§ 28).

Free and fair elections (linkage of – with the democratic control of armed forces):§ 22; § 23; § 36.

Friendly interference, right of: § 4.

GGeneva Conventions on international humanitarian law (12 August 1949) and their

1977 Additional Protocols: (General Introduction, § 12); § 29; § 31; § 34.Geneva Report on National Minorities (19 July 1991): § 1.Georgia – see GUAM countries.Germany: and the French Pan-European security Treaty project (General Introduction,

p. 2); French-German initial proposal for a Code of Conduct (General Introduction,p. 2); and undiminished status of existing OSCE commitments with regard to theCode of Conduct (4th paragraph of the Preamble); and servicemen’s right to associ-ation (§ 28); and trial Questionnaire on the Code of Conduct (§ 38).

Global Exchange of Military Information regime (1994): Introduction to Section V(n 113).

Gorbachev, Mikhail: General Introduction, p. 12 n 22); § 21; § 23; § 36.

406 INDEX TO PART I

Good faith, implementation of international law obligations in –: 3rd paragraph ofthe Preamble (n 43); § 1; § 15.

Greece: and co-sponsorship of the French-German initial proposal for a Code of Conduct(General Introduction, p. 2 n 3); and political neutrality of armed forces (§ 23).

GUAM countries (Georgia, Ukraine, Azerbaijan, Moldova): and stationing of armedforces on foreign territory (§ 114 n 111).

Guidelines on an OSCE Document-Charter on European Security (1997), Decisionon: § 3 n 56; § 10 n 94; Introduction to Section V (n 111).

HHague Conventions of 1907: § 34.Hague Convention for the Protection of Cultural Property in the Event of Armed

Conflict (14 May 1954): § 34.Helsinki Decalogue (1975): General Introduction, p. 7; 3rd paragraph of the Preamble;

§ 7; § 8; § 11, § 38 n 223; Principle I, see Sovereign equality States; Principle II,see Prohibition of use of force; Principle V, see Peaceful settlement of disputes;Principle VII, Human rights and fundamental freedoms; Principle VIII, see Self-determination; Principle X, see Good faith.

Helsinki Decisions 1992: 2nd and 4th paragraphs of the Preamble; § 2 n 41; § 4 n 66;§ 10; § 16; § 18; § 36 n 204.

Helsinki Document 1992 (“The Challenges of Change”): 4th paragraph of the Preamble(n 41).

Helsinki Final Act (1975): General Introduction (p. 1 and 7); , 1st , 2nd , 3rd and 4th

paragraph of the Preamble; § 1; § 2; § 3; Introduction to Section II (n 79); § 7; § 8;§ 10; § 38 n 223; § 42 n 257.

Helsinki Summit Declaration (1992): General Introduction (p. 3 n 5); 4th paragraphof the Preamble n 44; § 1; § 14 n 105; § 16; § 17; § 19.

Hinds, James E. (American Co-ordinator of the drafting process of the Code of Con-duct): General Introduction (p. 6).

Human dimension of security: General Introduction (§ 4); § 2; § 4 n 67; § 14 n 104;§ 17; § 38 n 225.

Human rights and fundamental freedoms: of conscripts (General Introduction, p. 10);Introduction to Section VII; § 23, § 28, § 32, § 33); consistency of recruitment andcall-up of conscripts with – (§ 27; § 1; § 2; § 17; § 27; 32; § 37.

Humanitarian assistance in armed conflicts: General Introduction (p. 7); § 5; § 19.Hungary: (§ 3 n 3); 1992 proposal on democratic control and use of armed forces

General Introduction (p. 4); § 20 n 134; 1991 joint US-Hungarian proposal oncivilian control over military and security forces (Introduction to Section VII); andusurpation of political control by armed forces (§ 21 n 147); political neutrality ofarmed forces (§ 23 n 155); and domestic use of force (§ 36 n 214).

Hungary, joint proposals of – with Austria on: a Code of Conduct (General Intro-duction, p. 4); title of Code of Conduct (n 34); economic/environmental dimension

INDEX PART I 407

of security (n 36); the Code of Conduct’s rationale (2nd paragraph of the Preamble);interlocking institutions (§ 4); solidarity principle (§ 5 n 73); terrorism (§ 6 n 81);commensurability of military capabilities with individual or collective security needs(§ 12 n 100); stationing of armed forces on foreign territory (§ 14); peacekeeping(§ 18); democratic control of armed forces (§ 20); usurpation of political controlby armed forces (§ 21, § 23); democratic control of armed forces’ rationale (§ 21n 142); intelligence services and the police (§ 21 n 145 and n 146); political neutral-ity of armed forces (§ 23 n 155); usurpation of political control by armed forces(§ 23 n 157); irregular armed forces (§ 25 n 162); conscientious objection (§ 28n 173); and domestic use of force (§ 36 n 214); state of public emergency (§ 36n 204); national minorities (§ 37); peaceful evolution of States(§ 37); prohibitionof forceful resettlement of populations (§ 37 n 220); prohibition of modificationby force of internal boundaries (§ 37 n 220).

Hungary, joint proposals of – with Austria and Poland: follow-up arrangements tothe Code of Conduct (§ 38).

Huntington, Samuel P.: Introduction to Section VII (n 130).

IIceland: co-sponsorship of European Union’s draft proposal for a Code of Conduct,

(General Introduction, p. 3).Indivisibility of security: General Introduction (p. 7); § 3; § 4 n 62; § 11; § 15. See

also Co-operative security.Interference in internal affairs – see Friendly interference in internal affairs.Intelligence services: General Introduction (p. 13); § 20; § 21 n 145; § 36; § 38.Interlocking institutions: General Introduction (p. 6); § 4; § 14 n 104.Internal boundaries, prohibition of modification by force of: § 37.Internal security forces: Council of Europe’s Parliamentary Assembly Recommendation

1402 of 1999 on “Control of internal security services in Council of Europe memberStates” (§ 20); human rights and fundamental freedoms of servicemen – of (§ 32);recruitment and call-up of – (§ 38); security missions assigned to – (§ 36); demo-cratic control of – (§ 38); role and missions of – (§ 38);

International Committee of the Red Cross (ICRC): § 29 n 177.International humanitarian law, subjection of armed forces to the obligations of:

General Introduction (pp. 8, 9 and 12); Introduction to Section VII; § 29; § 30; § 31;§ 34; § 35.

International law: the Code of Conduct and undiminished status of existing – principles(3rd paragraph of the Preamble); right of States to freely choose their securityarrangements in accordance with – (§ 10); obligation of States to maintain only suchmilitary capabilities commensurate with individual or collective security needs takinginto account obligations under – (§ 12); stationing of armed forces on foreignterritory in accordance with – (General Introduction, pp. 6, 8 and 15; § 4 n 65; § 5n 78; § 9; § 12 n 98; § 14; § 38);

Iraq: § 14.

408 INDEX TO PART I

Irregular armed forces: General Introduction (pp. 8-9); § 20; § 25; § 26; § 36.Ireland: co-sponsorship of the French-German initial proposal for a Code of Conduct

(General Introduction, § 3 n 3).Israel: OSCE “Mediterranean Partner for co-operation” (§ 3).Istanbul Charter for European Security (1999): 4th and 5th paragraphs of the Preamble;

§ 2; § 3 n 52; § 4, § 5, § 6, § 10, § 11, § 18, n 126; § 36 n 200; § 39.Istanbul Summit Declaration (1999): § 36 n 200; § 39 n 254.Italy: and servicemen’s right to association (§ 28).

JJapan: OSCE Asian “Partner for co-operation” (§ 3).Jordan: OSCE “Mediterranean Partner for co-operation” (§ 3).Judiciary branch, control of the – over armed forces: § 21.

KKosovo conflict: § 38.Kosovo Verification Mission (KVM): § 18. See also United Nations Interim Mission

in Kosovo (UNMIK).Kyrghizstan: co-sponsorship of French-German initial proposal for a Code of Conduct

(General Introduction, p. 2 n 3).LLandmines, anti-personnel: Introduction to Section V (n 113).Law Enforcement Officials, United Nations Code of Conduct for – see United

Nations.Legislative branch, control of the – over armed forces: General Introduction (pp. 8-9);

§ 13; Introduction to Section VII; § 21 n 144; § 22.Lisbon Declaration on Common and Comprehensive Security Model for Europe

for the Twenty-First Century (1996): 4th paragraph of the Preamble; § 3 n 52 and55; § 4 n 62, 64 and 72; § 5 n 70; § 6, § 8, § 10, § 11, § 12 n 99; § 14 n 111.

Luxembourg: and servicemen’s right to association (§ 28).

MMadrid, Concluding Document of the Madrid Follow-up Meeting (1983): Intro-

duction to Section II (n 79).Malta: co-sponsorship of the French-German initial proposal for a Code of Conduct

(General Introduction, p. 2 n 3); and assistance to OSCE States not belonging topolitico-military alliances (§ 5).

Manning of armed forces personnel in accordance with international humanitarianlaw obligations: General Introduction (p. 9); § 29; § 34; § 35.

Mediterranean Partner for co-operation, status of OSCE: § 3, § 42.Migrant workers: General Introduction (p. 4).

INDEX PART I 409

Military capabilities, obligation to maintain only such – commensurate with indi-vidual or collective security needs: General Introduction (p. 7); § 5 n 78; § 12;§ 13; § 36.

Military doctrines: p. 12 of General Introduction, § 35.Military domination, renunciation to – in the OSCE area: General Introduction

(p. 8); § 5 n 78; § 12 n 98 § 13.Military expenditures: legislative approval of – (General Introduction, p. 9; § 22; § 38);

restraint in – (General Introduction, p. 9; § 22; § 38); transparency and public accessto information related to – (General Introduction, p. 9; § 22).

Military forces: recruitment and call-up of (§ 27; § 38); human rights and fundamentalfreedoms of conscripts of – (§ 32). See also Armed forces, Conscripts, Democraticcontrol of armed forces and Servicemen.

Military incidents, hazardous: § 24. See also Accidental (or unauthorized) use ofmilitary means.

Military service, conscientious objection to: § 27; § 28; § 38.Military training programs and regulations: § 29; § 30; § 38.Moldova: stationing of Russian troops in – (General Introduction, p. 13; p. 12); and

democratic military transition (§ 42). See also GUAM countries.Morocco: OSCE “Mediterranean Partner for co-operation” (§ 3).Moscow Document on the Human Dimension (3 October 1991): General Introduction

(§ 14); § 1; Introduction to Section VII; § 20; § 21 n 143 and 144; § 22; § 23; § 36.

NNagorno-Karabakh conflict: § 14; § 18 n 126.National minorities: General Introduction (pp. 4 and 14); § 1; § 20; § 37 n 216.NATO (North Atlantic Treaty Organization): General Introduction (pp. 2, 3, 14

and 15 n 29); § 4, § 10, § 11, § 18, § 38.Netherlands: and need for a Code of Conduct Manual (General Introduction, n 33);

and servicemen’s right to association (§ 28); and trial Questionnaire on the Codeof Conduct (§ 38).

Neutrality, right of States to: § 11.“Non-diminution” clauses of the Code of Conduct: undiminished status of international

law principles (3rd paragraph of the Preamble); undiminished status of existing OSCEcommitments (4th paragraph of the Preamble, § 40).

Non-assistance or support to an aggressor State: General Introduction (p. 7); § 8.Non-proliferation: Introduction to Section V (n 113); § 16.Non-use of force – see Prohibition of use of force.Norway: co-sponsorship of European Union’s draft proposal for a Code of Conduct

(p. 3 of General Introduction); and servicemen’s right to association (§ 28).

410 INDEX TO PART I

0ODIHR (Office for Democratic Institutions and Human Rights): § 6; § 20 n 132;

§ 36 n 204.Open Skies Treaty (1992): § 15.OSCE (Organization for security and Co-operation in Europe): politically binding

nature of commitments (2nd and 4th paragraphs of the Preamble; § 32; § 39); – Asian“Partners for co-operation” (§ 3; § 42); – Platform for Co-operative Security (§ 4);Assistance to OSCE States not belonging to politico-military alliances (§ 5); Long-Term Missions (§ 17); Peacekeeping operations (§ 4 n 66; § 17 n 123; § 18 n 124and n 126; Kosovo Verification Mission: § 18; Seminars on military doctrines (§ 35n 193); Annual Assessment Implementation Meetings (§ 36; § 38); name changefrom “CSCE” to – (OSCE) § 39; Mediterranean Partners for-Co-operation (§ 42).See also Berlin Mechanism, Charter of Paris, Chechnya, Code of Conduct;Copenhagen Document, Forum for Security Co-operation, Helsinki Decalogue,Helsinki Decisions 1992, Helsinki Document 1992, Helsinki Final Act, HelsinkiFollow-up Meeting, Helsinki Summit Declaration, Istanbul Charter for EuropeanSecurity, Istanbul Summit Declaration, Human dimension of security, Economic andenvironmental dimension of security, Lisbon Declaration, Moscow Document,ODIHR, Politico-military dimension of security, Terrorism, Vienna Document onCSBM.

PPalme Independent Commission on Disarmament and Security Issues: § 4.Palme, Olof: § 3.Paramilitary forces: General Introduction (§ 9); § 20; § 38 n 231; parliamentary control

of – (§ 26), Poland and – (§ 26); Russian Federation and – (§ 26); recruitment andcall-up of – (§ 27; § 38); rights of servicemen of – (§ 32); assignment of internalsecurity missions to – (§ 36); democratic control of – (§ 38).

Partnership for Peace’s Framework Document (1994): General Introduction (§ 14).Peaceful evolution of States, non-retained proposals on: § 37 n 217.Peaceful settlement of disputes: 3rd paragraph of the Preamble; § 17 n 123; § 18 n

124.Peacekeeping: § 4 n 66; § 17 n 123; § 18 n 124.Platform for Co-operative Security: § 4.Poland: co-sponsorship of the French-German initial proposal for a Code of Conduct

(General Introduction, p. 2 n 3); Polish draft proposal for a Code of Conduct (Gen-eral Introduction, p. 3); Joint Russian-Polish food for thought paper on the Codeof Conduct’s structure (General Introduction, p. 6 n 10); and title of the Code ofConduct (n 19); and the Code of Conduct’s rationale (2nd paragraph of the Preamble);signature of the Code of Conduct (5th paragraph of the preamble, n 48); and inter-locking institutions (§ 4); and solidarity principle (§ 5); and terrorism (§ 6 n 81);and commensurability of military capabilities with individual or collective securityneeds (§ 12 n 100); and military domination in the OSCE area (§ 13 n 102); and

INDEX PART I 411

stationing of armed forces on foreign territory (§ 14); and restraint in militaryexpenditures (§ 22); and Poland and political neutrality of armed forces (§ 23 n 155);and servicemen’s right to association (§ 28); and military doctrines (§ 35 n 192);and peaceful evolution of States (§ 37 n 217); and follow-up arrangements to theCode of Conduct (§ 38); and trial Questionnaire on the Code of Conduct implementa-tion (§ 38); joint proposals of – with Austria and Hungary on follow-up arrangementsto the Code of Conduct (§ 38); and conformity of national laws and practices withthe Code of Conduct (§ 41 n 255);

Police forces: General Introduction (p. 13); Introduction to Section VII; § 20; § 21 n145; § 36; § 38. See also Council of Europe.

Politically binding nature of OSCE commitments: 2nd and 4th paragraphs of thePreamble; § 32; § 39.

Politico-military dimension of security: General Introduction (pp. 1, 2, 3 and 6); § 2;§ 4; Introduction to Section V (n 113).

Porto Charter on Preventing and Combating Terrorism (2003): § 6.Prohibition of use of force: General Introduction (pp. 2 and 3); 3rd paragraph of the

Preamble; § 5; § 8.Public emergency, role of armed forces during a state of: § 36.

QQuestionnaire on the implementation of the Code of Conduct: trial Questionnaire

(§ 38); 1998 version (§ 6; § 13; § 14; § 21; § 22; § 27; § 28; § 29; § 30; § 33; § 36n 200; § 38); revision of item 1 of the 1998 version (§ 6); 2003 updating of the1998 version (§ 38).

RRecruitment of armed forces personnel in accordance with human rights obliga-

tions: § 20; § 27; § 38.Rights and duties of armed forces personnel – see Conscripts.Right of States to belong or not to belong to alliances: see Alliances.Right of States to freely choose their security arrangements: General Introduction

(p. 7); § 10; § 11.Right of States to neutrality. See Neutrality.Right of States to self-defense. See Self-defense.Romania: co-sponsorship of the French-German initial proposal for a Code of Conduct

General Introduction (p. 2 n 3); and servicemen’s right to association (§ 28).Rule of law, linkage of – with democratic control of armed forces: General Intro-

duction, pp. 1, 8, 10 and 11); § 1; § 20; § 21; § 23; § 36.Russian Federation: co-sponsorship of the French-German initial proposal for a Code

of Conduct (General Introduction, p. 2 n 3); Joint Russian-Polish food for thoughtpaper on the Code of Conduct’s structure (General Introduction, p. 6 n 10); andNATO’s military intervention in Kosovo (General Introduction, p. 13, n 29; § 38);

412 INDEX TO PART I

and terrorism (§ 6); and NATO enlargement (§ 11); and the Baltic States (§ 14);and the Nagorno-Karabakh conflict (§ 14); and verification mechanism for the Codeof Conduct implementation (§ 15 n 117); and the practice of dedovshina (§ 28);and the concept of unlawful orders to armed forces (§ 31); and Chechnya (§ 36);and voluntary exchange of information on the Code of Conduct implementation (§ 38n 227).

SSecurity sector reform: General Introduction (p. 13); Introduction to Section VII.Self-defense, right of States to: General Introduction (p. 7); § 5; § 9.Self-determination of peoples: § 37.Servicemen, rights and duties of – see Conscripts.Slovenia: and servicemen’s right to association (§ 28).Small arms and light weapons (2000), OSCE Document on: Introduction to Section

V (n 113).Solidarity principle: General Introduction (pp. 3 and 7); § 5, § 12 n 98.South Korea: OSCE Asian “Partner for co-operation” (p. 2).Sovereign equality of States: 3rd paragraph of the Preamble; § 4; § 10.Spain: co-sponsorship of the French-German initial proposal for a Code of Conduct

(General Introduction, § 3 n 3).State of public emergency – see Public emergency.Stationing of armed forces on foreign territory: General Introduction pp. 6, 7 and

13); § 4 n 65; § 5 n 78; § 9; § 12 n 98; § 14; § 38.Stockholm, Document of the – Conference on CSBM and Disarmament in Europe

(1986): Introduction to Section II (n 79).Sufficiency rule under the CFE Treaty: § 12; §13.Sweden: and defense planning (Introduction to Section V, n 114); and servicemen’s

right to association (§ 28); and Chechnya (§ 36).Switzerland: and servicemen’s right to association (§ 28).

TTerrorism: General Introduction (pp. 4 and 7); § 6, § 38.Thailand: OSCE Asian “Partner for co-operation” (§ 3).Training of armed forces personnel in accordance with international humanitarian

law obligations: General Introduction (§ 9); § 29; § 34; § 35.Training Seminars on the Code of Conduct: § 42.Treaty on Conventional Armed Force in Europe (CFE), 1992 – see CFE Treaty.Tunisia: OSCE “Mediterranean Partner for co-operation” (§ 3).Turkey: and the “European Union plus” proposal for a Code of Conduct (General

Introduction, p. 4); Turkish draft proposal for a Code of Conduct (General Intro-duction, p. 4); and migrant workers (General Introduction, p. 4); and terrorism(General Introduction, p. 4); and arms trafficking (General Introduction, p. 4); and

INDEX PART I 413

democratic control and use of armed forces (General Introduction, p. 4); andproposed title for the Code of Conduct (p. 19); and the Code of Conduct’s rationale(2nd paragraph of the Preamble); and terrorism (§ 6); and stationing of armed forceson foreign territory (§ 14); and CSBM (Introduction to Section V, n 117); and armscontrol and disarmament (§ 15 n 119; § 16); and non-recognition of the legitimacyof an usurper government (§ 21 n 147; § 23 n 158); and military doctrines (§ 35n 192); and non-use of armed forces at domestic level for reprisals purposes (§ 37n 220); and fostering of relations with OSCE non-participating States through theCode of Conduct (§ 42 n 259).

UUkraine: and servicemen’s right to association (§ 28); and democratic military transition

(§ 42). See also GUAM countries.UNESCO: § 34.United Kingdom: and servicemen’s rights and duties (§ 28; § 33).United Nations: and terrorism (§ 6 n 81; § 38), Security Council (§ 14; § 38); United

Nations Interim Mission in Kosovo (UNMIK) (§ 18 n 126); Code of Conduct forLaw Enforcement Officials, 1979 (General Introduction, p. 1; § 20; § 36; § 37 n215); United Nations Commission on Human Rights (§ 28) and conscientiousobjection to military service; and Helsinki Final Act (§ 39 n 257). See also Charterof the United Nations.

United States: and the French pan-European Security Treaty project (General Intro-duction, p. 2); and the “European Union plus” draft proposal for a Code of Conduct(General Introduction, p. 3); objection to opening the Code of Conduct for signature(4th paragraph of Preamble); and interlocking institutions (§ 4); and terrorism (§ 6;§ 36 n 204); and the right of states to self-defense (§ 9); and stationing of armedforces on foreign territory (§ 9; § 14); and Iraq (§ 14); 1991 joint US-Hungarianproposal on civilian control over military and security forces (Introduction to SectionVII); and NATO’s military intervention in Kosovo (§ 38). See also Hinds, JamesE. (American Co-ordinator of the drafting process of the Code of Conduct).

Unlawful orders to armed forces: § 31.UNMIK (United Nations Interim Mission in Kosovo): § 18Use of force for internal security purposes – see Domestic use of force.Usurpation of political control by armed forces: General Introduction (§ 12); § 21;

§ 23.

VVienna Document on CSBM: General Introduction (p. 12); Introduction to Section

V (n 113 and 114); § 22 n 153; § 24; § 35 n 193; § 38 – see also CSBM.Vienna Follow-Up Meeting (1989), Concluding Document of the: Introduction to

Section II (n 81); § 38 n 223.

414 INDEX TO PART I

Vienna Mechanism for consultation and co-operation as regards unusual militaryactivities: § 38 n 225.

WWarsaw Pact Treaty Organization: p. 1 of General Introduction, § 10, § 11.Western European Union (WEU): § 4 n 66.

YYugoslavia: suspension from the OSCE (§ 4); and servicemen’s right to association

(§ 28).

INDEX TO PART II*

AAlternative civilian service, 290, 297-

300- alternative national defence

service, 294- civilian alternative service, 294- non-military alternative labour

service, 299- substitute civil service, 294- see also Conscientious objection,

Human rights of armed forcespersonnel, Military service

Armed forces, 190, 192, 193, 197,243-250, 268, 278- assignment of – to internal

security missions, 208, 216, 269,271, 273-274

- bodies and organs outside the – ,310

- combat capabilities and readinessof – , 235, 324

- commander of the – , 225, 270- concept of – 187, 188-194, 242

- cooperation of – with lawenforcement, 234

- external deployment of – 270- non-combatant duties in the – ,

294- political neutrality of the – 202,

300, 303- professionalism of the – , 280,

290-291- prohibition of service within the

– before the age of 18, 292- training and modernisation pro-

grammes for the – , 230- transformation of the – into a

voluntary service institution, 302- see also Democratic control of

armed forces, Military forces,Paramilitary forces, Intelligenceservices, Internal security forces,Police, Recruitment and call-up,Security sector

Armed forces personnel, 288- as members of legal political

parties, 289

* This Index does not take into account chapter 3.1 (pp. 330-358). The chapter compiles andsummarises the main results of the assessment made under section 2 and does not containnew elements relevant to the index.



416 INDEX TO PART II

- individual accountability of –270, 281, 286

- legal status of – , 303- political activities of the – 303- serving their compulsory military

service, 310- status of professional – , 301-303- see also Armed forces, Demo-

cratic control of armed forces,Human rights of armed forcespersonnel, International human-itarian law

Arms and drugs trafficking, 312- see also Terrorism

Asylum, security assessment in –matters, 321

BBiological Weapons Convention –

BWC, 1972 (Convention on theProhibition of the Development,Production and Stockpiling ofBacteriological and Toxic Weaponsand on their Destruction), 312- see also Terrorism

Black Sea region, 314, 325Border Guards 234, 251, 263, 276,

280, 292- border control, 271, 275, 316- border police, 263, 278, 293- border services, 252- coast guards, 251, 292- frontier guards, 276- see also Paramilitary forces,

Security forces, PoliceBosnia and Herzegovina, 329Bucharest Action Plan on terrorism

(2000) - see OSCE, Terrorism

CCaucasian countries, 246, 330Central Asia, 329, 330

Child Kidnapping, Hague InternationalConvention on Civil Aspects of -

in the World, 314- see also Terrorism

Civil-military relations- democratic – , 196, 264- Euro-Atlantic expectations in the

field of democracy and – , 194,242

- western-style patterns of – , 223- see also Democracy, Democratic

control of armed forces, Euro-pean Union, NATO, Police

Civil society, 373- armed forces integration with –

208, 243, 269, 301- see also Armed forces, Demo-

cracy, Democratic control ofarmed forces, Civil-militaryrelations, Human rights of armedforces personnel

Code of Conduct on Politico-MilitaryAspects of Security, 284, 312- amending the Questionnaire to

the – , 365- clarifying guidelines to the Ques-

tionnaire, 365- Code of Conduct and security

sector reform, 365- contributing to best practices of

democratic control of armedforces, 368-370

- dissemination of the – 286- enhancing effectiveness, trans-

parency and efficiency of thereporting, 365

- evaluation of the informationexchange on the – , 214-218

- follow-up conference on the –329, 360

- implementation of the – 200,282, 285

INDEX PART II 417

- improvement of the informationexchange on the – , 376-377

- information exchange (1999-2002) on the – 185-187, 198,219, 329, 330-358

- inter- and intra state norms ofthe – , 209

- inter-state aspects of the informa-tion exchange, 311-327, 351-358

- model answer to the Question-naire, 361

- reporting technique, 358-370- Questionnaire viewed from a

thematic perspective, 210-218- way ahead, 370-374- 1998 Questionnaire on the – ,

186-187, 203-204, 207, 214, 220,222, 267, 281, 322, 359, 362-363

- 1997 (trial) Questionnaire onthe – , 207

- 2003 (updated) Questionnaire onthe – , 359-364, 361, 376

- 2003 and 2004 informationexchange on the – , 374-377

- see also OSCE, Democraticcontrol of armed forces

Coast guards - see Border guardsCommonwealth of Independent States

(CIS), 234, 237, 314, 316, 324,325

Conscientious objection, 293-294- see also Alternative civilian

services, Military service, Humanrights of armed forces personnel

Constitutionally established authoritiesand procedures to ensure the demo-cratic political control of thesecurity sector - see Democraticcontrol of armed forces

Copenhagen Criteria (1993) of theEuropean Union - see EuropeanUnion

Council of Europe, 191, 294, 317, 373

- Parliamentary Assembly’s Re-commendation 1402 (1999) on‘Control of internal securityservices’, 191

- see also Democratic control ofarmed forces

Corruption, Civil Law Convention on– 314- see also Terrorism

Crimes and acts of violence, reinforce-ment of punishment of, 320- see also Terrorism

DDayton Framework Agreement on

Peace in Bosnia and Herzegovina(1995), 325- see also Status of forces agree-

ment, PeacekeepingDefence (sector), 226

- civilian expertise in – matters,222

- defence and terrorism, 321- defence agreements, 225- defence budget, 225-226, 234-

236- defence capabilities, 228, 230,

271-272- defence directives, 228- defence education, 277-278- defence expenditures, 213, 376- defence forces, 197- defence guidelines, 224, 227- defence legislation on terrorism,

322- defence planning, 200-201, 222-

223- defence policy, 223, 227, 233,

236- defence reform, 280- defence strategy, 233- defence structures, 251- local – , 268


- territorial – , 235, 268, 271- see also Armed Forces, Demo-

cratic control of armed forcesDefence ministry - see Ministry of

defenceDemocracy

- democratic transition, 242- established and emerging demo-

cracies, 203- EU Criteria of – , 194- European and North-Atlantic

standards of – and civil-militaryrelations, 242

- integration of armed forces withcivil society as an importantexpression of – , 243, 301

- see also European Union, Civil-military relations, Democraticcontrol of armed forces

Democratic control of armed forces186, 203, 217, 219, 242, 269, 362,372- civil guidance (and management)

of the – , 208, 223- civilian control of the – , 222,

245, 371- Code of Conduct section VII

on – , 208- constitutionally established

authorities and procedures toensure the – , 221, 242-267

- counter-terrorism and democraticoversight, 371

- democratic accountability in thedeployment of troops abroad,324

- democratic oversight over thearmed forces, 222

- democratic oversight over thesecurity sector, 213

- democratic political control ofthe security sector, 242, 372

- democratic use of armed andsecurity forces, 203, 217, 370

- legislation providing – , 246- parliamentary control of the

armed forces, 212- Partnership for Peace objectives

of – , 194- primacy of constitutional civilian

power over military power, 211,216, 219, 220-280, 304, 330-341

- public access to informationrelated to the – , 212-221, 235-242

- public oversight over the armedforces, 213, 226

- rationales of – , 242- see also Armed forces; Armed

forces Personnel, Civil-militaryrelations, Human rights of armedforces personnel, Intelligenceservices, Paramilitary (forces),Police (forces), Security sector

EEAPC (Euro-Atlantic Partnership

Council) - see NATOEuro-Atlantic integration process, 228European association of non-commis-

sioned officers (AESOR), 278- see also Paramilitary (forces)

European and North Atlanticstandards, 230

European Convention on HumanRights (ECHR), 288- see also: Human rights of armed

forces personnel, EuropeanUnion

European Convention on the Sup-pression of Terrorism (1978) - seeEuropean Union

European Council of ConscriptsOrganisation (ECCO), 288

INDEX PART II 419

- see also Democratic control ofarmed forces, Human rights ofarmed forces personnel

European Security and DefencePolicy - see European Union

European Societal Charter for Con-scripts (1996), 289- see also Democratic control of

armed forces, Human rights ofarmed forces personnel

European Union (EU), 187, 194, 314- Copenhagen Criteria (1993), 194-

196- EU (and NATO) candidate coun-

tries, 236, 237- EU acquis and requirements for

policing, 293- EU acquis in the fight of terror-

ism, 318- EU Framework Decision on

terrorism, arrest warrants,freezing of funds or of otherfinancial assets, 319

- EU conventions and protocols onterrorism, 314

- European Convention on theSuppression of Terrorism (1978),314

- European Council regulations oncombating the financing ofterrorism, 319

- European Security and DefencePolicy (ESDP), 229, 314

EUROPOL, 264- see also European Union, Police,

TerrorismExchange of information on the Code

of Conduct - see Code of Conduct

FFederation of Associations of

Reservists and Veterans of thearmed forces, 278

- see also Paramilitary (forces)Female military service - see Military

serviceForum for Security Cooperation (FSC)

- see OSCEFreedom of though, religion, and con-

science - see Human rights ofarmed forces personnel

Frontier guards - see Border guards

GGendarmerie - see Paramilitary

(forces)

HHuman rights (and fundamental free-

doms) of armed forces personnel,287-311, 344-351- complaint and appeal procedures,

307- exercise of, 305-311- freedom of thought, religion, and

conscience, 305-306- individual rights, 305- investigating institutions and

legal assistance, 307-308- political (and civic) rights, 300,

305- protection (and safeguard) of – ,

300-311- representative institutions of

armed forces personnel, 307, 309- respect of the –, 214, 216, 220- restrictions of the – , 303-305- right of appeal, 301- right of complaint and legal

assistance, 305-306- right of information, 305-306- right to military insurance, 305-

306- right to refuse military service

for reasons of conscience, 294- right to vote, 304


- servicemen’s privacy and indi-viduality, protection of, 305-306

- see also Armed forces personnel,Conscientious objection, Demo-cratic control of armed forces,Inspector general of the armedforces, Legal advisor, Ombuds-man

IInformation exchange on the Code of

Conduct - see Code of Conduct onPolitico-MilitaryAspects of Security

Inhumane Weapons Convention, 1980(Convention on Prohibitions of theUse of Certain ConventionalWeapons Which may be Deemedto be Excessively Injurious or toHave Indiscriminate Effects), 313- see also Terrorism

Inspector general of the armed forces,308- see also Human rights of armed

forces personnel, OmbudsmanInterior ministry - see Ministry of

interiorInternal leadership centres, 283

- see also International human-itarian law

Internal security missions, assignmentof armed forces to - see Armedforces

Internal security forces, 189, 190, 192,243, 252-253, 278- administrative action taken by -

against the citizens, 253- democratic accountability of – ,

253- internal security services, 189,

190, 254- overlaps between – and intel-

ligence services, 253-254

- see also Armed forces, Securityforces, Intelligence services,Ministry of interior, Police,Security sector

International Committee of the RedCross (ICRC), 283- see also International human-

itarian lawInternational Criminal Court, Rome

Statute of the, 313- see also Terrorism

International Humanitarian Law (IHL)- awareness of – , 284, 286- instruction and training in – ,

283- leadership codes and norms

of – , 286- promoting knowledge of – , 281-

282, 285- respecting the corpus of – in

peacetime and wartime, 281- pocket handbooks and easy-to-

carry personal instruction cards,285

- sensitising and diffusing – , 284- subjection of armed forces to the

norms and prescriptions of – ,216, 220, 281-287, 342-344

- training and dissemination of – ,285-286

- see also Democratic control ofarmed forces, Peacekeeping

INTERPOL, 264, 313- see also Police, Terrorism

Intelligence services, 189, 192, 243,254-262- Bureau of constitutional pro-

tection, 154- central intelligence agency, 154- civilian and military – , 255- civilian control of – , 371- civil security service, 254- intelligence forces, 254

INDEX PART II 421

- parliamentary and judicial controlof – , 258

- parliamentary oversight over – ,258

- secret services, 154- security and – , 254- security intelligence service, 254- special legislation on – , 257- state department of intelligence,

234- strategic defence and military

intelligence service, 254- see also Armed forces, Internal

security forces, Security forces

KKosovo, 325

LLaw enforcement, safeguard of public

order and, 271, 275- see also Internal security forces,

Paramilitary forces, PoliceLaw of armed conflict (LoAC), 284-

285- see also International human-

itarian lawLegal advisor, 282, 284-285

- see also Human rights of armedforces personnel

Legitimate self-defence, right of, 324

MMAP (Membership Action Plan) - see

NATOMartial law, 302


Mercenaries, New York InternationalConvention on Prevention of theUsage, Finance and Training of(1989), 314- see also Terrorism

Migrants, Protocol Against Smugglingof - by Land, Sea and Air (2000),314- see also Terrorism

Migration, national – boards, 321Military (forces), 189-190, 192-193,

268- civilian and – court systems,

301-303- military budget, 234, 290- military capabilities, 212- military codes of justice, 301- military conscription, 290, 295,

311- military counter-intelligence, 253,

278- military disciplinary rule, 301-

302- military doctrine, 224- military intervention, 324- military justice, 302- military police, 319- military security, 235- military statute, 301- military strategy, 233, 236- powers of the military, 270- professional status of the – , 300,

303- regular – , 194, 268-275- rights and duties of the – , 303- roles and missions of military

and security forces, 221, 267-280, 269, 271-275

- see also Armed forces, Demo-cratic control of armed forces,Civil-military relations, Militaryservice, Defence (sector),Security sector

Military expenditures - see Defence(sector)

Military international cooperation, 271-273


Military posture, national planning anddecision-making process for thedetermination of the, 212, 221,222-235

Military service- compulsory – , 294- deferment of – , 294- disciplinary matters in – , 302- exemptions from (or alternatives

to) compulsory –, 288, 293-300,295-297

- extra-term – , 290- female – , 292- person liable for – , 291- professional – , 294- see also Alternative civilian

service, Human rights of armedforces personnel

Ministerial information policies:Minister of defence, 223-224, 228,

245-246- see also Democratic control of

armed forcesMinistry of defence

- civilianisation of the – , 243, 245- civil servants in the – , 246- information policies of the – ,

235, 238-242- measures taken by the – to com-

bat terrorism, 321-322- task force on defence and terror-

ism, 321- see also: Armed forces, Demo-

cratic control of armed forcesMinistry of interior (or justice), 253,

266-267- de-politicisation of the – , 267- internal forces within the budget

of the – , 234- military organised units sub-

ordinated to the – , 251- see also Internal security forces

Ministry of state security, 234

Money laundering, EU directive on-see European Union, 319

Moscow Document on the HumanDimension of the OSCE (3 Octo-ber 1991) - see OSCE

NNational guard, 263

- see also Paramilitary (forces),police (forces)

National (defence) information policies- see Ministry of defences

National security - see Intelligenceservices

NATO (North Atlantic TreatyOrganisation), 187, 196-203, 314- Euro-Atlantic Partnership Coun-

cil (EAPC), 198- Membership Action Plan (MAP),

196-197, 236, 242- NATO (and EU) candidate coun-

tries, 236-237- NATO enlargement (study on),

196, 228-233- NATO open door policy, 197- NATO planning process, 223,

229- (new) members and associated

countries, 222, 228, 315- North Atlantic Council/ North

Atlantic Cooperation Council,196

- Partnership for Peace (Frame-work Document), 187, 194, 196-203, 323

- Partnership Work Document (andprogramme), 196, 197

- see also European Union,Defence (sector), Status of forcesagreement (SOFA)

OOmbudsman

INDEX PART II 423

- armed forces – , 308- ministry of justice – , 265- parliamentary – , 310- parliamentary commissioner, 265- see also Democratic control of

armed forces; Human rights ofarmed forces personnel, Inspectorgeneral, Democratic control ofarmed forces, Police (forces)

Organized crime- combating (terrorism and) – ,

271, 274, 278, 312- money laundering, banking and

income from – , 319- UN convention against trans-

national – 313- see also Terrorism, United

NationsOSCE (Organisation for Security and

Cooperation in Europe)- best practices of democratic

control of armed forces in the –region, 369

- Bucharest Action Plan on terror-ism (2000), 317

- Forum for Security Cooperation(FSC), 185, 187, 374

- Moscow Document on theHuman Dimension of the OSCE(3 October 1991), 188

- OSCE peacekeeping, 283- OSCE peace support operations,

283- regime on the democratic control

of armed forces, 211, 214, 216,219, 220, 281, 287, 364, 369

- Vienna Document on Con-fidence- and Security-BuildingMeasures (1999), 267

- see also: Code of Conduct ofPolitico-Military Aspects ofSecurity, Democratic control ofarmed forces

PParliamentary commissioner (for the

armed forces) - see OmbudsmanParamilitary and (internal) security

forces, 250-254, 275-280, 289,292-293- militarised troops and formations

other than the regular militaryand defence forces, 250

- see also Paramilitary (forces)Paramilitary (forces), 189, 192, 243

- armed forces, other troopsand – , 235

- civic organised – institutions,277

- combat mission capabilitiesof – , 208

- democratic oversight over – ,252

- Gendarmerie, 251, 278, 286- irregular – , 191, 267- non-state – , 192- paramilitary forces subordinated

to the ministry of defence inpeacetime, 251

- paramilitary or internal securityforces, 243

- regular – , 191- see also Armed forces, Border

guards, Internal security forces,Intelligence services, Ministry ofinterior, Paramilitary and securityforces, Security forces, Police(forces)

Parliamentary control of the armedforces - see Democratic control ofarmed forces

Partnership for Peace Frameworkdocument - see NATO

Partnership Work Programme - seeNATO

Peacekeeping, 264, 283, 284, 323, 324


- deployment of police units on –missions, 263

- peace support operations, 323-324

- humanitarian relief operations,283, 324


Peace support operations - seePeacekeeping

Police (forces), 192, 243, 252, 262-267, 278, 280- apolitical role and conduct of

the – , 264- basic – , 263- civilian and democratic control

of – , 265- commissioner of the national – ,

252- complaints against – officers,

264- constitutional order and pro-

tection services, 263- criminal –, 263- ethnic composition of – units,

263- European – legislation, 264- government protection services,

293- multi-ethnic – , 267- private – , 263- police inspectorate, 265- police reform, 262- 267- public prosecutor, 265- (public) security – , 262, 278-

279, 293- special anti-terrorist squads- special –- special – control institutions- see also Armed forces, Para-

military forces, Internal securityforces, Peacekeeping, Securityforces

Primacy of democratic constitutionalpower over military power - seeDemocratic control of armed forces

Public access to information related tothe armed forces - see Democraticcontrol of armed forces

Public prosecutors - see Police (forces)Public security police - see Para-

military (forces), Police

QQuestionnaire on the implementation

of the Code of Conduct - see Codeof Conduct onPolitico-Military Aspects ofSecurity

RRapid deployment forces, 284Recruitment and call-up (for service in

the armed and security forces),287-288, 289-293- call-up appeal boards, 310- compliance with human rights

standards in the area of – , 289- evaluation centres (draft boards),

291- principle of non-discrimination,

291- recruitment, call-up and human

rights, 291-292- registration, pre-induction and

call-up, 291- service employment criteria, 293- see also Armed forces personnel,

Democratic control of armedforces, Human rights of armedforces personnel, Military,service

Referendum- facultative – , 226- obligatory – , 226

INDEX PART II 425

- see also Democratic control ofarmed forces

Relief operations, humanitarian - seePeacekeeping

Republican guards- disciplinary rule of – , 278- national – , 277-278, 293- roles and missions of – , 277- see also Paramilitary (forces)

Reserve Officers, Inter-Allied Con-federation of (CIOR), 278- see also Paramilitary (forces)

Reservists, 284, 286, 294- see also Military service, Re-

cruitment and call-up, Humanrights of the armed forces’ per-sonnel

Roles and missions of military andsecurity forces - see Military(forces)

SSan Remo International Institute of

Humanitarian Law, 283- see also International human-

itarian lawSchengen Agreement, 264, 314

- see also Police, Terrorism, Euro-pean Union

Secret services - see Intelligenceservices

Security intelligence service - seeIntelligence services

Security forces (and services), 189-190, 192, 278- performance of duty in cer-

tain – , 291- security services of the parlia-

ment and the state president, 278- see also Armed forces, Intel-

ligence Services, InternalSecurity Forces, Police (forces),Recruitment and call-up

Security sector, 187, 188-189- criteria for success and failure of

– reform, 370- structure of the – , 243, 362- see also Armed forces, Demo-

cratic control of armed forcesSmall Arms and Light Weapons

(SALW), Document on (2000), 358Serbia and Montenegro, 329South Eastern Europe, 314South East European Common Assess-

ment Paper (SEECAP), 315- see also Terrorism

South East European Security Co-operation Steering Group(SEEGROUP), 315- see also Terrorism

South European Cooperation Initiative(SECI), 315- see also Terrorism

South European Defence Ministers(SEDM), 315- see also Terrorism

Special anti-terrorist squads - seePolice (forces)

Status of forces agreement (SOFA),325- agreement confirmation act, 327- NATO – , 323, 325- Partnership for Peace – , 323,

325, 326, 327- sub-regional – , 325- see also Stationing of armed

forces on foreign territory,NATO

Stationing of armed forces on foreignterritory, 217, 220, 311, 322-327,377- democratic accountability in the

case of – , 326- political control of – , 377- visiting forces act, 325


- see also Status of forces agree-ment (SOFA), NATO

Substitute civil service - see Altern-ative civilian cervices

TTerrorism

- anti-terrorist (and anti-drug)units, 251, 319

- bridge between counter-terrorismand democratic oversight, 371

- CIS Agreement on the Combatof terrorism, 316

- CIS anti-terrorism centre, 316- code of conduct on – , 376- combat and prevention of – ,

217, 220, 311, 374- combat of – and organised crime,

271, 274, 312- combat of – and other forms of

extremism, 316- comprehensive convention on

international – , 312- defence and – , 321- Draft Convention for Suppression

of Nuclear – , 312- fight against – consistent with

basic norms and principles of theCode of Conduct, 371

- financing of – , 312- internal – , 318- international – , 318- International Convention for the

Suppression of Financing of –(New York, 9 December 1999),313

- International Convention for theSuppression of TerroristBombings (New York, 12January 1998), 313

- international fight against – , 376- multi-dimensional approach to

counter-terrorism, 318

- new criminal offences relatedto – , 320

- post-September 11 nationalaction plans on – , 317

- (prevention and) combat of – 280- public disturbances and – , 263- questionnaire on – , 370- roles and mission of armed

forces in preventing and com-bating – , 375

- special anti-terrorism squads, 263- TREVI Programme

(terrorism, radicalism and inter-national violence), 314

- use of security forces to fightorganised crime, extremismand – , 270

- war against – , 283- see also Armed forces, Code of

Conduct on Politico-MilitaryAspects of Security, Democraticcontrol of armed forces, Euro-pean Union, EUROPOL, Intel-ligence services, Internal securityforces, INTERPOL, Securityforces, Paramilitary (forces),Police (forces), United Nations

Torture, International Convention onPrevention of - and Other InhumanTreatment and Punishment (1985),314

Trafficking in human beings, Protocolfor the Prevention, Suppression andPunishment of, 313-314- see also Terrorism

UUnited Nations (UN)

- Chapter VI and VII of the UN-Charter, 324

- UN convention against trans-national organised crime(Palermo, 2000), 313

INDEX PART II 427

- UN conventions and protocols onthe suppression of terrorism, 313

- UN General Assembly Counter-Terrorism Committee, 312

- UN peacekeeping, 324- UN peace support operations,

283, 317- UN Security Council Counter-

Terrorism Committee, 312- UN Security Council Resolution

No. 1373, 312- see also Terrorism

United Nations: (UN) ConventionAgainst Trans-National OrganisedCrime (Palermo 2000)- see also Terrorism

United Nations (UN) Conventions andProtocols on the suppression ofterrorism- see also Terrorism

VVienna Document on Confidence-

and Security-Building Measures(1999) - see OSCE

Visiting forces act - see Stationing ofarmed forces on foreign territory

WWeapons of mass destruction (WMD),

proliferation of, 313- see also Terrorism


Published in the series The Graduate Institute of International Studies:

1. V. Gowlland-Debbas, H. Hadj-Sahraoui, M.Garcia Rubio: United Nations Sanctionsand International Law. 2001 (ISBN 90 411 1603 6)

2. V. Gowlland-Debbas, V. Chetail: Switzerland and the International Protection ofRefugees. 2002 (ISBN 90 411 1743 1)

3. S. Sadat Akhavi: Methods of Resolving Conflicts between Treaties. 2003(ISBN 90 411 2031 9

4. V. Gowlland-Debbas: National Implementation of United Nations Sanctions. 2004(ISBN 90 04 14090 5)

5. V.-Y. Ghebali, A. Lambert: The OSCE Code of Conduct on Politico-MilitaryAspects of Security. 2005 (ISBN 90 04 14292 4)

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