ICRC statement on scope of weapons and transactions 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 giving the ICRC the opportunity to share some thoughts on the scope of weapons and transactions in the Arms Trade Treaty (ATT). We also thank you for your three draft papers, which indeed form a good basis for discussion this week.
In the view of the ICRC, the scope of the Arms Trade Treaty should be a function of its object and purpose: to reduce the human cost of the poorly regulated, global trade of weapons. A large number of States have explicitly recognized that one of the ATT's goals is to prevent transfers that facilitate serious violations of international humanitarian or human rights law. This goal does not seem to be in dispute today.
lf the object and purpose is to reduce this human cost, then it is difficult to imagine any particular conventional weapon or type of transfer that would not require regulation. This is consistent with UN General Assembly Resolution 64/48, which calls for the elaboration of a "legally binding instrument on the highest possible common international standards for the transfer of conventional arms." The Resolution does not limit itself to certain types of conventional weapons or to certain types of transfers. The view of the ICRC is that all conventional weapons, including small arms and light weapons, and ammunition should be included in the scope of the Arms Trade Treaty. With this in mind, the question shouldn’t be which conventional weapons should be included in the ATT but which, if any, should be excluded.
The ICRC welcomes the use of the word "include" in the draft paper on Scope. This highlights that the list of items constituting "conventional weapons" is not exhaustive. To reinforce this, we would like to suggest the following formulation: “This Treaty covers all conventional arms, which include, inter alia, those items enumerated below that are designed or modified for military or law-enforcement use.”
We have added the words "designed or modified for military use" to be consistent with the wording of Annex A. It is also important to include the notion of conventional arms designed or modified for law-enforcement use, as they are often used to commit the serious violations of IHL and international human rights law that this treaty is aiming to help prevent.
Inclusion of ammunition in the scope of the ATT is crucial if the treaty is to have an impact in reducing preventable human suffering in the short or mid-term. Experience and research carried out by the ICRC have shown that the availability and price of ammunition can have a direct effect on how strictly or freely ammunition, which is the primary injury mechanism of weapons, is used. Also, the ICRC understands from recent available research that a large majority of arms transferred internationally come from countries that already control the transfer of ammunition.
Before transferring any ammunition, States must assess the likelihood that the ammunition will be used to commit serious violations of international humanitarian or human rights law, whether in armed conflict or law enforcement operations. If a State finds that there is no clear risk of such violations, then legitimate uses will not be hampered. In addition, it is important to highlight that this risk assessment for transfers is a very different issue than whether to mark, trace, or prevent diversion of the ammunition once it is transferred.
On the matter of transactions, the ICRC believes that all transfers, as understood in existing international instruments and as formulated in paragraph 1(g)(a) of Annex B of the draft paper on Scope, should be covered by the ATT. Import, export, re-export, temporary transfer and gifts should already fall within this definition of transfer. The ICRC considers that activities such as transit, trans-shipment, loans, leases, as well as brokering and closely related activities should equally fall within the scope of an ATT in order to ensure that the treaty is truly comprehensive.