Arms Trade Treaty: ICRC statement on transfer criteria, Diplomatic Conference, 19 July 2012
United Nations Diplomatic Conference on the Arms Trade Treaty, New York, 19 July 2012.
Thank you Mr chairman
We welcome your effort to move this discussion forward by presenting a new chair's text earlier this week that simplifies and consolidates many issues under discussion. In particular it removes several elements of the previous section 5 that were basically a restatement of existing legally binding obligations. We would also like to make some preliminary comments on the new draft you circulated this morning.
As regards criteria our primary concern remains. The bottom line of the text you distributed Monday is that despite a "presumption" of denial a transfer can go forward despite a substantial risk that serious violations of IHRL or IHL will be committed with the weapons concerned. There is still no indication of what factors would justify over-riding the presumption of denial. This creates A likelihood that the presumption will be applied in a subjective, possibly arbitrary and inconsistent manner.
Unlike an earlier chair's text, there is no indication in Monday's text concerning what types of mitigating measures should be taken by States. As we stated last week we believe mitigating measures can be useful and important. They could include bilateral assurances and clarifications, training of forces, disciplinary action against those responsible for previous violators and the securing of stocks to prevent diversion.
However, in our view mitigating measures must be taken before an authorization is granted and not as justification for a transfer that would not otherwise be justifiable.
There may be different evaluations concerning when a substantial risk exists. But once this substantial risk has been identified it is essential that an international legal regime does not permit or imply that weapons can be transferred despite this clear risk of war crimes being committed with the weapons concerned.
Mr Chairman, as you will understand, the problems we raised here are amplified by the contents of your rev1 distributed this morning. This paper, while using many of the formulations which we and others have called for concerning IHL and IHRL, leaves the door wide open to the transfer of weapons despite an assessment that there is a substantial risk that they will be used to commit war crimes or serious violations of IHRL. This, in relation to IHL, risks undermining in a international legal regime the existing obligation in the Geneva Conventions of states to "ensure respect" for IHL.
We would also like to add our voice to those which have insisted that the criteria before us must be a core obligation of an ATT and not simply an implementation issue.
In closing, Mr Chair, we would like to recall two points we highlighted last week. "serious violations of IHL" are war crimes and the two terms are used interchangeably. They include but are not limited to "grave breaches" that are listed in the Geneva Conventions and their Additional Protocol I of 1977. However, "grave breaches" can only be committed in international armed conflicts. In our view, references to crimes under IHL in a future ATT should use the term "serious violations of IHL", as you do in today's draft, to ensure that an act is covered, whether it is committed in an international or non-international armed conflict.