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The development of an international Arms Trade Treaty

18-03-2008 Statement

A comprehensive global agreement that would strengthen controls over international arms transfers is urgently needed. The continued unregulated supply of weapons to areas where they are likely to be used to violate international humanitarian law demonstrates that existing controls are far from adequate - comments by the International Committee of the Red Cross

Introduction  

 The International Committee of the Red Cross (ICRC) has since the late 1990s been calling for stricter regulation of international transfers of military weapons. Through its humanitarian work in some 80 countries worldwide, the ICRC has witnessed how the unregulated availability and widespread misuse of weapons has facilitated violations of international humanitarian law and led to a deterioration in the situation of civilians during armed conflicts and in other situations of violence. The proliferation of weapons to a range of new actors has also had direct implications for the ICRC's ability to fulfill its mandate of assisting the war victims and promoting respect for international humanitarian law.

The humanitarian concerns posed by the unregulated availability of weapons were documented in the ICRC report Arms availability and the situation of civilians in armed conflict published already in 1999. Its findings have since been confirmed by a number of other studies conducted by various research institutes, UN agencies and NGOs. It is unfortunately evident—based on the ICRC's direct experience from situations of armed conflicts and violence worldwide—that despite the increased global attention which the problem of unregulated arms availability has received in the past 10 years or so, efforts have so far not had a significant impact on the ground.

    

The human cost of unregulated arms transfers  

Violations of international humanitarian law are widespread in contemporary armed conflicts, with civilians often bearing the brunt of the violence. Civilians are not only caught in the cross-fire between the warring parties, but they are often deliberately targeted. Women are subjected to sexual violence, children are forcibly recruited into the armed forces or armed groups and used to participate in the fighting, and whole communities are forced to flee their homes under threat of attack. In a number of contexts, the security situation is deteriorating for both local and international actors providing humanitarian assistance. This leaves the many civilians that depend on humanitarian aid to survive in an even more precarious situation. 

The increasingly easy access to highly lethal weaponry in conflict zones both facilitates such violations and aggravates their consequences. While a single shot from a standard rifle fired into a crowded market would be a criminal incident, unloading dozens of bullets a minute from an automatic weapon or firing a mortar into the same market can transform it into the scene of a massacre. These types of incidents have unfortunately become so familiar that they seem almost inevitable to both the public and to decision-makers.

Nevertheless, such incidents can be prevented and States have both the responsibility and the opportunity to do so. It is obvious that no single measure can effectively prevent weapons from being used in violation of international humanitarian law. Yet, the establishment of strict controls on weapons transfers to prevent further proliferation is an indispensable part of the solution. Without effective measures in this area, it is unlikely that much progress will be made in reducing the misuse of weapons on the ground. An d the price of inaction is high, in terms of human suffering, social and economic disruption and the burdens of intervention when the international community decides to act.

 

 The need for an international arms trade treaty  

In recent decades, State have adopted wide-ranging prohibitions and limitations on the transfer of chemical, biological and nuclear weapons, missile systems and certain components of these technologies. Yet it is conventional weapons— assault rifles, grenades, mines, bombs, rockets and missiles—that are causing most of the death and injury in today's conflicts. Until recently, however, the transfer of conventional weapons had received little attention at the global level.

The ICRC has urged States to develop strict controls on conventional arms transfers at the national, regional and global level. It has also promoted specific criteria for arms transfers aimed at preventing weapons from falling into the hands of those likely to use them to violate international humanitarian law. In recent years, the ICRC has been pleased to note the significant progress that has been made in this regard at the regional level. A number of regional instruments now include a list of criteria to be considered before authorizing certain arms transfers—mainly of small arms and light weapons.

Still, existing regional arms transfer criteria vary and not all regions have adopted such commitments. At the national level, criteria for arms transfer decisions are even more disparate, and only rarely do they fully reflect all of States'obligations under international law.

This highlights the need for common global standards in this field to achieve consistent approaches to arms transfer decision-making among States. The ICRC theref ore strongly supports the development of a treaty that would define common standards for arms transfers based on States'responsibilities under international law, including international humanitarian law. We warmly welcome the adoption of UN General Assembly resolution 61/89, which takes this initiative forward.

 

 The parameters of an arms trade treaty: International humanitarian law obligations relevant to conventional arms transfers  

In our view, an Arms Trade Treaty should, as a minimum, reflect States existing legal obligations relevant to arms transfers. The ICRC would in particular urge all States to ensure that their responsibilities under international humanitarian law are adequately reflected. International humanitarian law, which governs the use of weapons in armed conflict and protects victims of war, is a particularly relevant consideration in decisions to transfer military arms and ammunition, and other military equipment. States also have a number of obligations under international humanitarian law that are directly applicable to arms transfers. [1]  

Firstly, there are certain explicit prohibitions or limitations on conventional arms transfers contained in international humanitarian law, which arise from specific treaty obligations. States Parties to these treaties are prohibited from transferring—or have to exercise restraint when transferring—particular categories of conventional weapons. These include for example a prohibition on the transfer of:

  • Certain types of landmines under Amended Protocol II to the 1980 Convention on Certain Conventional Weapons;

  • Blinding laser weapons under Protocol IV to the 1980 Convention on Certain Conventional Weapons;

  • Anti-personnel mines under the 1997 Convention on the prohibition of anti-personnel mines.

Second, among the fundamental rules of international humanitarian law is the prohibition on the use of weapons that are of a nature to cause superfluous injury or unnecessary suffering and weapons that are by nature indiscriminate. These are universally accepted norms, which bind all States. The use of specific weapons has been prohibited on the basis of these principles (e.g. expanding and exploding bullets). Even when these treaties do not specifically prohibit the transfer of such weapons, allowing the transfer of prohibited weapons would be difficult to reconcile with States'duty to ensure respect for humanitarian law. The same argument would apply to the transfer of weapons that—even if they are not regulated by a specific convention—would be considered prohibited based on these fundamental rules.

Ultimately, however, the majority of arms transfers concern weapons that are not specifically restricted or prohibited under international humanitarian law. In these cases, States must nevertheless consider how the weapons they transfer are likely to be used.

Although international law allows States to acquire arms for their security, under Article 1 common to the 1949 Geneva Conventions and their Additional Protocol I, all States also have a solemn obligation to “respect and ensure respect” for humanitarian law. Not only do States have to respect the law, but they also have a responsibility to “ensure respect” by others. This is generally interpreted as conferring a responsibility on third-party States not involved in an armed conflict to refrain from encouraging a party to an armed conflict to violate international humanitarian law, to not take action that would assist in such violations, and to take appropriate steps to cause such violations to cease

Because military weapons are transferred with the purpose of enabling the recipient to engage in an armed conflict, such transfers should therefore be considered in light of States obligation to ensure respect for humanitarian law. States that produce and export arms can be considered particularly influential in " ensuring respect " for international humanitarian law owing to their ability to provide or withhold the means by which violations may be committed. They should therefore exercise particular caution to ensure that the weapons transferred are not used to commit serious violations of international humanitarian law.

States party to the Geneva Conventions affirmed this responsibility at the 28th International Conference of the Red Cross and Red Crescent in December 2003 . In the Agenda for Humanitarian Action adopted by the Conference, States party to the Geneva Conventions undertook to " make respect for international humanitarian law one of the fundamental criteria on which arms transfer decisions are assessed " and were encouraged to incorporate such criteria in national laws and policies, as well as regional and global norms. [2]  

The ICRC considers that to fully reflect States’ obligations under international humanitarian law, any future global standards on arms transfers should include a requirement to assess the recipient’s likely respect for humanitarian law, and not transfer weapons if they are likely to be used for serious violations of this law.

An increasing number of regional arms transfer instruments, as well as national laws and regulations, already contain such international humanitarian law criteria. These include documents adopted by the OSCE, ECOWAS, the OAS and the Central American Integration System. A similar provision should be an essential element in any future Arms Trade Treaty. 

    

 Conclusion  

A comprehensive global agreement that would strengthen controls over international arms transfers is urgently needed. The continued unregulated supply of weapons to areas where they are likely to be used to violate international humanitarian law demonstrates that existing controls are far from adequate. In the absence of stricter controls, the human costs of unregulated arms transfers are likely to continue to grow as more weapons find their way into the hands of those who will use them to commit atrocities, to violate international humanitarian law and human rights, to spread terror and to commit other crimes.

Any international standards adopted should be comprehensive and establish concrete requirements for arms transfer decision-making. These must take full account of States'existing obligations under international law, including international humanitarian law.

Specifically, such a treaty should include:

  • A requirement not to transfer arms or ammunition likely to be used to commit serious violations of international humanitarian law;

  • A requirement not to transfer weapons or ammunition whose use has been prohibited;

  • A requirement not to transfer weapons or ammunition that are of a nature to cause superfluous injury or unnecessary suffering or that are by nature indiscriminate;

  • A reference to existing prohibitions on the transfer of specific weapons. 

Governments have a responsibility not to transfer weapons if they believe th ey might be used for violations of international humanitarian law. For the ICRC, this is however not only a legal question. Equally compelling is the moral responsibility that rests on arms-transferring States—precisely because their actions can make a difference— to withhold the means by which violations are carried out and to contribute to the protection of civilians. By agreeing to strict arms transfer controls that would be common to all States, governments can prevent weapons from ending up in the hands of those who will use them to violate the very rules that States themselves have created. In so doing, they can also strengthen the basis for post-conflict reconstruction, the rule of law and lasting peace in many areas of the world. 

    Notes

  1. This paper focuses only on obligations pertaining to conventional arms.

  2. Agenda for Humanitarian Action, Final Goal 2.3