ICRC position on parameters of an Arms Trade Treaty
ICRC statement on parameters of an Arms Trade Treaty, open-ended working group towards an arms trade treaty, New York, 15 July 2009
The ICRC welcomes the very broad support expressed by States for including respect for IHL among the key parameters of a future Arms Trade Treaty.
A presumption that transfers will be denied should, in our view, apply to cases of “serious violations” of international humanitarian law. It is important to underline that the term “serious violations” is not a vague concept or open-ended list. It refers to actions described as “grave breaches” of the Geneva Conventions and their Additional Protocols and to “war crimes” as defined under the Rome Statute of the International Criminal Court. These “grave breaches” and “war crimes” are actions that have already been given legal definition in the above instruments negotiated by States, including nearly all of the States involved in this process.
The responsibility to deny arms transfers to prevent serious violations is already understood to be an element of the obligation to “ensure respect” for international humanitarian law that is contained in common article 1 of the Geneva Conventions. This view of the obligation to “ensure repect” was confirmed by States parties to the Geneva Conventions in the “Agenda for Humanitarian Action” adopted by the 2003 International Conference of the Red Cross and Red Crescent.
The commitment to take into account in arms transfer decisions whether the arms are likely to be used to commit serious violations of international humanitarian law is also contained in many regional instruments and policy frameworks on arms transfers including the OSCE framework document, the European Union Common Position, the ECOWAS Convention, the Nairobi Protocol, the OAS “Model Regulations on regulation of arms brokering activities, the “Bamako Declaration” of the African Union and the Code of Conduct of Central American States. A large proportion, then, of participants in this process have already adopted such undertakings at the political level and, in the case of the European Common Position and ECOWAS Convention, also at the legal level. A “Guide to Applying IHL Criteria in Arms Transfer Decision Making”, produced by the ICRC and distributed here, provides a set of indicators to assist States in making judgements about likely respect for IHL by recipients.
Given the broad support and existing commitment by a large number of States to the use of IHL as a parameter in arms transfer decisions it should be possible to achieve agreement here that this should be one important parameter of a future ATT. We urge States that have not yet done so to consider supporting this proposal. The ICRC delegation would be happy to discuss this matter with any interested delegation.
Mr. Chairman, the issue has been raised as to whether or not a legally binding agreement is necessary to achieve the objectives of this exercise. The ICRC’s answer is yes. The ICRC has for decades invested considerable effort into ensuring national implementation of IHL agreements including, most notably, the Geneva Conventions and their Additional Protocols. It is our experience that, even when the agreement is legally binding, ensuring adequate national legislation, inter-ministerial planning and cooperation, training, discipline and other arrangements necessary for the fulfillment of commitments is a major, continual and inter-generational challenge. Many States as recently as 5-10 years ago had not yet enacted legislation to implement the Geneva Conventions and some still do not have such legislation today. In our view, a politically binding document or guidelines would not to achieve the purposes of an Arms Trade Treaty.