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ICRC position on an Arms Trade Treaty

01-10-2009 Statement

The ICRC strongly supports the elaboration of a comprehensive, legally binding Arms Trade Treaty (ATT) that establishes common international standards for the responsible transfer of conventional weapons and their ammunition, based on States' responsibilities under international law, including international humanitarian law

  •  An ATT should regulate conventional arms and ammunition transfers as these are defined in existing IHL and arms control treaties. An ATT should also regulate conventional arms and ammunition brokering and closely associated activities, as defined by the Group of Governmental Experts’ 2007 report. Transfers of all conventional weapons (including small arms and light weapons) and their ammunition must be covered in an ATT.          
  •  An ATT should include an obligation to a) assess the recipient’s likely respect for IHL, and b) refrain from transferring arms or ammunition if there is a clear risk that the arms or ammunition will be used to commit serious violations of IHL.         

  •  An ATT should also explicitly include an obligation to refrain from transferring specific weapons or ammunition the use or transfer of which has been prohibited, and an obligation not to transfer weapons or ammunition that are of a nature to cause superfluous injury or unnecessary suffering or that are by nature indiscriminate.  

 The human cost of unregulated arms transfers and the need for a comprehensive international Arms Trade Treaty  

In its 1999 study on the availability of arms and the situation of civilians in armed conflict, the ICRC found that the availability of conventional weapons facilitates violations of international humanitarian law (IHL) and hampers the delivery of assistance to victims.

Weapons are, by definition, probably the only legal product explicitly designed to cause harm to humans. The lack of regulation in the arms trade should be considered an unfortunate anomaly in the international legal system. A key objective then must be to protect human health and dignity by ensuring that the product we are speaking of is only available to those who use it in accordance with existing law, including international humanitarian law.

It is also important to recognize that the entire fabric of law, and of IHL in particular, is based on the assumption that the users of weapons are trained, disciplined and actually use their arms in accordance with the law. If this is not so, as is the case when weapons are widely available or their transfer remains uncontrolled, then to expect respect for the law is unrealistic, to say the least. All the efforts of States party to the Geneva Conventions and of the ICRC to ensure respect for IHL are undermined by continued unregulated access to weapons.

Since the late 1990s, the ICRC has urged States to develop strict controls on conventional arms transfers at the national, regional and global levels to achieve consistent approaches to decisions on responsible arms transfers. The ICRC strongly supports the elaboration of a comprehensive, legally binding Arms Trade Treaty (ATT) that estab lishes common international standards for the responsible transfer of conventional weapons and their ammunition, based on States'responsibilities under international law, including IHL.

 The scope of transactions and weapons to be covered under an Arms Trade Treaty  

An ATT should regulate conventional arms and ammunition transfers as these are defined in existing IHL and arms control treaties. Conventional arms and ammunition transfers are, in addition to the physical movement of arms and ammunition into or from national territory, the transfer of title to and control over the arms and ammunition. The ICRC considers that acts such as transit, trans-shipment, loans and leases are covered by this definition, and, in any event, should fall within the scope of an ATT in order to ensure that this treaty is as comprehensive as possible.

An ATT should also regulate conventional arms and ammunition brokering and closely associated activities, as defined by the Group of Governmental Experts’ 2007 report. The authorization of brokering and closely associated activities should be based on the same criteria as those applicable to arms transfers by States.

In order to ensure comprehensive coverage of all international arms transfers and reduce the human suffering resulting from the uncontrolled availability of weapons, transfers of all conventional weapons and their ammunition must be covered in an ATT. It is particularly important to include small arms and light weapons among the conventional weapons covered by an ATT.

 Parameters of an Arms Trade Treaty: international humanitarian law  

IHL, which governs the use of weapons in armed conflict and protects victims of war, is a particul arly relevant consideration in decisions to transfer conventional arms and ammunition. Although international law allows States to acquire arms for their security, States have a number of IHL obligations that are directly applicable to the use and transfer of arms, and all States have a solemn obligation to “respect and ensure respect” for humanitarian law. 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 IHL, avoid action that would assist in such violations, and take appropriate steps to put an end to such violations.

Because weapons are often transferred with the purpose of enabling the recipient to engage in an armed conflict, transfers should 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 IHL 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 IHL.

Indeed, in the Agenda for Humanitarian Action adopted by the 28th International Conference of the Red Cross and Red Crescent in 2003, States party to the Geneva Conventions undertook to “make respect for IHL 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.

To fully reflect States’ obligations under IHL, an ATT should include an obligation to a) assess the recipient’s likely respect for IHL, and b) refrain from transferring arms or ammunition if there is a clear risk that the arms or ammunition will be used to commit serious violations of IHL. (Serious violations include grave breaches of the Geneva Conven tions and their Additional Protocol I, and war crimes listed under the Rome Statute of the International Criminal Court.)

An ATT should also explicitly include an obligation not to transfer specific weapons or ammunition the use or transfer of which has been prohibited, and an obligation not to transfer weapons or ammunition that are of a nature to cause superfluous injury or unnecessary suffering or that are by nature indiscriminate.

The ICRC’s “ Practical Guide ” on applying IHL criteria in arms transfer decisions provides specific guidelines on the matter.