ICRC statement on IHL criteria in the Arms Trade Treaty – 2nd Preparatory Committee session, Feb.-Mar. 2011
Arms Trade Treaty Preparatory Committee, New York, 28 February to 4 March 2011, ICRC statement.
Thank you, Mr. Chairman, for this second opportunity to share some thoughts on one of your draft papers.
The ICRC first documented the humanitarian concerns posed by the poorly regulated availability of weapons in a report entitled Arms availability and the situation of civilians in armed conflict, which was published in 1999. This report concluded that the widespread availability of arms facilitates violations of international humanitarian law (IHL) and hampers delivery of assistance to victims. Since the late 1990s, the ICRC has been calling for stricter regulation of international transfers of weapons and ammunition as a means to reduce the suffering resulting from the poorly regulated availability of weapons. An important goal of the Arms Trade Treaty (ATT) is to reduce the human cost of the poorly regulated availability of weapons through the implementation of stronger and more responsible conventional arms transfer controls.
In particular, the ATT should reflect all States' obligation to ensure respect for IHL by making respect for IHL one of the fundamental criteria on which arms transfer decisions are made, so that the weapons do not end up in the hands of those who may be expected to use them in serious violation of IHL.
In light of this obligation to ensure respect of IHL, an ATT should include a requirement to a) assess the likelihood that serious violations of IHL will be committed with the weapons being transferred, and b) not authorize transfers if there is a clear risk that the arms will be used to commit serious violations of IHL. Serious violations of IHL include grave breaches of the Geneva Conventions, to which all States are a party, as well as grave breaches under Additional Protocol I to the Geneva Conventions, and other war crimes such as those listed under the Rome Statute of the International Criminal Court. If an ATT allows measures short of denial where there is a clear risk of serious violations of IHL with the weapons being transferred, then this will undermine the goal of the treaty.
Mr. Chairman, we would also like to share some comments on the wording of the draft paper on Criteria. Starting with Paragraph I, and as we have already heard many delegations mention today, the words "should, as appropriate, take into consideration" suggest that States have a choice of whether or not to apply the listed criteria. This is not consistent with criteria under Part A on existing international obligations, which States must at all times respect. It is also incompatible with the wording of criteria under Parts B and C that create the firm obligation not to transfer if certain substantial risks exist. We would therefore suggest deleting the words "as appropriate, take into consideration" and replacing them with the word "apply."
The current wording of subparagraph A(2) merely reminds States that they must respect their existing obligations, whatever they may be. It would be a more effective provision if it referred to States' existing obligations relating to the transfer of conventional arms. What is key here is that the transfer not violate any of the State's existing obligations or commitments under international law. We would therefore propose language as follows: “A State Party shall not authorize a transfer of conventional arms if the transfer would breach any of its other obligations or commitments under international law.”
Regarding Subparagraph B(2), we would suggest replacing "and" with "or". The original wording could be interpreted as requiring a denial of transfer only if there is a substantial risk of violations of both international humanitarian law and international human rights law. As these bodies of law do not always apply in the same circumstances, it is important that this subparagraph reflect two independent criteria.
We would have some additional comments to share on the wording in this draft paper, and would be happy to make these available to interested States and to your secretariat.
Finally, the ICRC would like to refer delegations to its “Practical Guide” on applying IHL criteria in arms transfer decisions (available in English, French, Spanish and Russian). This “Guide” aims to assist States in applying IHL criteria by proposing that guidelines be developed for assessing the risk of serious violations of IHL. It outlines a set of indicators that can be used as a basis for assessments, provides a list of grave breaches and war crimes referred to earlier in this intervention, and proposes an illustrative list of sources of information relevant to risk assessments.