ICRC position on IHL parameters in an Arms Trade Treaty
ICRC statement on international humanitarian law parameters in an arms trade treaty, open-ended working group towards an Arms Trade Treaty, New York, 5 March 2009.
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 unregulated availability of weapons.
International humanitarian law (IHL), which governs the use of weapons in armed conflict and protects victims of war, is a particularly relevant consideration in decisions to transfer conventional arms and ammunition. Although international law allows States to acquire arms for their security, under IHL, all States also have a solemn obligation to “respect and ensure respect” for humanitarian law. Arms and ammunition transfers should be considered in light of States’ obligation to ensure respect for humanitarian law.
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 international humanitarian law 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.
In the view of the ICRC, an Arms Trade Treaty should include an obligation to a) assess the recipient’s likely respect for international humanitarian law, and b) not transfer arms or ammunition if there is a clear risk that the arms or ammunition will be used to commit serious violations of this law. (Serious violations include grave breaches of the Geneva Conventions and their Additional Protocol I, and war crimes listed under the Rome Statute of the International Criminal Court.)
An ATT should also 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 international humanitarian law criteria in arms transfer decisions provides specific guidance on how to apply IHL criteria in this field: Arms transfer decisions: Applying international humanitarian law criteria