ICRC statement on IHL criteria in an Arms Trade Treaty – 1st Preparatory Committee session, July 2010
During the Arms Trade Treaty (ATT) Preparatory Committee session held at UN headquarters in NY in July 2010, the ICRC delivered a statement on IHL criteria in an ATT.
In the course of the ICRC's work providing humanitarian assistance to victims of armed conflict, we have witnessed the tremendous harm caused to civilians as a result of the poorly regulated, international trade of conventional weapons. Insufficient controls on arms transfers too often lead to weapons falling into the hands of persons who use them to commit violations of international humanitarian law (IHL).
We would therefore like to contribute to this session on standards and criteria by highlighting the need to assess the risk that the arms being transferred will be used to commit serious violations of IHL.
Weapons transfers should be considered in light of States'existing obligation to " ensure respect " for IHL. 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. States that 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.
In light of this obligation to “ensure respect”, an Arms Trade Treaty (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. 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 an ATT’s objective of reducing human suffering.
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.
We have heard at least one State inquire about the level of risk that would be required to deny arms transfers under an ATT. Isolated incidents of violations of IHL are not necessarily indicative of a recipient’s attitude towards IHL, and may not by themselves be considered a sufficient basis for denying an arms transfer. But, any discernible pattern of violations, or any failure by the recipient to take appropriate steps to put an end to violations and to prevent their recurrence, should be of serious concern.The ICRC’s "Practical Guide " on applying IHL criteria in arms transfer decisions provides specific guidelines on making systematic and objective risk assessments. It proposes a number of indicators for transferring States to assess before authorizing a transfer. These include:
Whether a recipient which is, or has been, engaged in an armed conflict, has committed serious violations of IHL;
Whether a recipient which is, or has been, engaged in an armed conflict has taken all feasible measures to prevent violations of IHL or cause them to cease, including by punishing those responsible;
Whether the recipient has made a formal commitment to apply the rules of IHL and taken appropriate measures f or their implementation;
Whether the recipient country has in place the legal, judicial and administrative measures necessary for the repression of serious violations of IHL;
Whether accountable authority structures exist with the capacity and will to ensure respect for IHL;
Whether the recipient maintains strict and effective control over its arms and military equipment and their further transfer.