Master’s Thesis
The failure of the 2014 Arms Trade Treaty to include an express
provision on the transfer of conventional weapons to
non-state armed groups
Research question:
‘To what extent does the 2014 Arms Trade Treaty regulate arms transfers
to non-state armed groups?’
Juliette Kaesmacher juliette.kaesmacher@hotmail.com
12757756
Master track: Public International Law 24th of July 2020
Abstract
This LLM thesis is an analysis of the 2014 Arms Trade Treaty (ATT). Although this instrument aims to regulate global arms trade, it does not include an express provision on the transfer of conventional weapons sent to non-state armed groups (NSAGs). This work examines to what extent the instrument might indirectly cover these transfers. Under general international law, arming a NSAG is a breach of the non-intervention principle and of the prohibition on the threat or use of force under Article 2(4) of the UN Charter. However, the amount of transfers of weapons to these groups has increased in the past two decades, picturing a shift of political alliances beyond the State-to-State realm. This work starts by identifying the numerous calls by the Global South prior to and during the negotiations of the Treaty to include an express provision covering arms transfers to NSAGs. An in-depth discussion of the object and purpose and substantive obligations of the Treaty leads to the conclusion that the ATT regulates arms transfers to NSAGs, but only to a very limited extent. The circumstances under which transferring States cannot authorize these transfers are too narrow. The analysis pictures the political nature of international law and the imperialist discourse governing the regulation of arms trade. Additionally, the ATT does not clearly answer the legal controversy that arose in 2013 as to whether transfers of weapons to the Free Syrian Army were strictly prohibited or whether there is a lawful basis for exceptions when the NSAG needs foreign help to defend itself against an oppressive regime. The ambiguity left in the ATT allows for significant exporters to keep transferring weapons to NSAGs without a provision expressly telling them not to do so. This legal gap leads to greater risks of arms misuse by armed groups, and therefore to the potential commission of atrocities, humanitarian law violations and human rights abuses.
Table of Content
Abstract ... 1
Table of Content ... 2
Introduction ... 3
I. Historical dimension of arms supplies to private actors ... 5
II. Aims of the ATT ... 7
A. Context of the ATT with regards to NSAGs ... 7
i. Obstacles facing the establishment a general regulation ... 7
ii. Previous attempts to regulate arms transfers to NSAs ... 8
iii. UN Security Council Arms Embargoes ... 9
B. Object and Purpose of the ATT ... 11
i. Negotiations ... 11
ii. Ambiguity in the final version ... 11
III. Substantive provisions covering NSAGs in the ATT ... 13
A. Article 6: Prohibitions ... 13
i. Negotiations ... 13
ii. Paragraph 1: UN arms embargoes ... 14
iii. Paragraph 2: international agreements ... 15
iv. Paragraph 3: international crimes ... 16
B. Article 7: Exports ... 19
i. Serious violation of humanitarian law ... 19
ii. Serious violation of human rights law ... 20
iii. ‘Overriding risk’ ... 22
C. Article 11: Diversion ... 22
i. Negotiations ... 23
ii. Paragraph 2: Risk assessment mechanism for exporting States ... 24
IV. The ATT applied to the Syrian conflict ... 25
A. Substantive provisions of the ATT with regards to the FSA ... 26
B. Attempts to create exceptions for arms transfers to NSAGs ... 26
Conclusion ... 29
Introduction
The Arms Trade Treaty (ATT)1 is the first international agreement regulating transfers of conventional weapons. It entered into force in December 2014 and counts 104 States Parties, with 26 other signatories.2 The Treaty aims to stop unregulated and irresponsible transfers leading to human rights abuses and prolongation of armed conflicts.3 The implementation mechanism relies on the national control systems of each State Party which must adopt and comply with the substantive obligations set out in the instrument.4 The Treaty covers conventional weapons defined under Article 2(1). These include small arms and light weapons (SALW) but also battle tanks, armoured combat vehicles, large-calibre artillery systems, combat aircraft, attack helicopters, warships, and missiles and missile launchers. Articles 3 covers ammunitions/munitions and Article 4 focuses on other parts and components. For the purposes of this work, the terms ‘conventional weapons and related items’ are used to describe all of the objects covered by Articles 2, 3 and 4.
Despite aiming to regulate arms trade globally, the ATT does not provide an express obligation covering transfers of conventional weapons and related items to non-State armed groups (NSAGs). This is an intriguing point considering that, although these groups only possess small portion of conventional weapons in the overall arms trade, their misuse creates a high risk of casualties and violations of human rights in peacetime and during armed conflicts.5 More generally, NSAGs play an increasingly significant role in international law and are core elements of the power play between States through alliances and cooperation strategies. For example, these groups have gained much recognition in the context of non-international armed conflicts (NIACs). Since 1949, the international community seems to have acknowledged NSAGs as subjects, and not only actors of international law. In fact, Article 3 common the four
1 Arms Trade Treaty, (adopted 2 April 2013, entered into force 24 December 2014) 3012 UNTS 52373 (“ATT”). 2 United Nations Office of Disarmament Affairs (UNODA), ‘Arms Trade Treaty’ <https://www.un.org/disarmament/convarms/arms-trade-treaty-2/> accessed 10th May 2020.
3 UNODA, ‘Arms Trade Treaty Implementation Toolkit – Module 1: Why Join the ATT?’ <https://unoda-web.s3-accelerate.amazonaws.com/wp-content/uploads/2015/08/2015-08-21-Toolkit-Module-1.pdf> accessed 10th May 2020.
4 ATT, Article 5.
5 David Capie, ‘Armed Groups, Weapons, Availability and Misuse: An Overview of the Issues and Options for Actions’ (Background Paper for a Meeting Organized by the Centre for Humanitarian Dialogue, Bamako, May 2004), 4.
Geneva Conventions (GCs)6 and Protocol II7 have allegedly made them bearers of the rules of international humanitarian law (IHL).8 International criminal responsibility also opens the door to the inclusion of these groups in the international legal sphere. It creates the possibility for individual members of a NSAG to be responsible for the commission of international crimes. Same can be said for human rights law that sometimes even expressly mentions NSAGs in instruments like the Child Soldier Protocol.9
In addition, calls were made by a large number of States during the ATT negotiations to provide a clear regulation of arms transfers to non-State actors (NSAs)10 usually in the form of a complete ban. Although certain regional instruments establish measures to adopt towards these transfers, an international provision expressly covering NSAGs would have been desirable as part of this significant and long-awaited Treaty. The lack of direct regulation concerning arms supplies to NSAGs reflects the missed the opportunity to further acknowledge the impact of these groups in international relations, despite their often State-like features.
Nonetheless, does the ATT indirectly cover transfers of conventional weapons to NSAGs? Can the ATT reach its object and purpose without a clear regulation expressly focusing on these groups? Does the Treaty answer the legal debate that arose in 2013 in relation to the arming of the Free Syrian Army (FSA) by the US, the UK, France, Qatar and other States? Are States Parties willing or able to provide certain exceptional circumstances when those transfers would be allowed? This thesis attempts to answer the latter questions in four sections. First, it discusses the historical dimension of arms supplies to private actors. Chapter II analyses the aims of the Treaty looking at its context, object and purpose. Chapter III then explores three substantive
6 Common Article 3 to the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention), Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Second Geneva Convention), Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287.
7 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609.
8 As confirmed by the ICJ in relation to the Contras in the Case Concerning Military and Paramilitary Activities
in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ 14 (27 June) (“Nicaragua”),
para 119; and by the ICTY in Prosecutor v Akayesu No. ICTR-96-4-T, (2 September 1998), para 611.
9 Article 4 of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (adopted 25 May 2000, entered into force 12 February 2002), adopted and opened for signature, ratification and accession by General Assembly Resolution A/RES/54/263 of 25 May 2000.
10 Althgouh this thesis focuses on NSAGs, the international community most often uses the terms ‘non-state actors’ (this more general wording also covers other types of non-state entities in addition to NSAGs); see Chapter II.A.(i).
obligations of the ATT. The last part focuses on arms transfers that took place in 2013 to the FSA and demonstrates how the ATT missed the opportunity to clarify whether there is a legal ground for authorizing these types of transfers in exceptional circumstances.
I.
Historical dimension of arms supplies to private actors
Initiatives outlawing violence in the private sphere have long been present throughout history.11 In medieval times, mostly in Europe, the church, monarchies, papacy and similar institutions generally prohibited the use and acquisition of weapons by actors other than the ruling authority.12 The ‘problematization’13 of arms possession by private actors from a foreign
authority further strengthened after the establishment of the Westphalian sovereign-State model which enhanced the political authority, territory, mutual recognition and independence of the State.14 In that perspective, the supply of weapons from an outside power to private groups was
a breach of the host State’s sovereignty.
The adoption of the UNGA Friendly Relations Declaration (1970)15 supported the view that arms trade should remain exclusively handled by sovereign States and that it is a breach of international law to arm NSAGs in a foreign State. It provides that States have ‘the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State (…) when the acts (…) involve a threat or use of force.’16 In the landmark
1986 Nicaragua case, the International Court of Justice (ICJ) confirmed the importance of sovereign equality between States. It held that arming and training a NSAG in a foreign State without the host State’s consent amounted to a breach of the customary principle of non-intervention.17 It was also held to be a breach of the prohibition on the threat or use of force
11 Tamara Enomoto, ‘Controlling Arms Transfers to Non-State Actors: From the Emergence of the Sovereign State System to the Present’ (2017) History of Global Arms Transfer 3, 4.
12 Udo Heyn, ‘Medieval Arms Control Movements and the Western Quest for Peace’, in Richard D. Burns (ed.)
Encyclopaedia of Arms Control and Disarmament, vol. II (New York, 1993).
13 Enomoto (n 11).
14 Stephan D. Krasner, ‘Rethinking the Sovereign State Model’ (2001) 27 Review of International Studies 17, 17-18.
15 UNGA Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, (24 October 1970) UN Doc. A/Res/2625(XXV) (« Friendly Relations Declaration »).
16 ibid; see also the UNGA Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty (21 December 1965) UN Doc. A/RES/20/2131, Resolution 2131(XX).
17 The Court held that an intervention was unlawful if it was conducted without the consent of the host State, see
under Article 2(4) of the UN Charter18 and customary law.19 By giving primacy to state sovereignty, the Court also induced the exclusion of lawful arms transfers from a State to a non-State entity. The ICJ nevertheless acknowledged that a modification of that rule could arise through the emergence of a new customary norm.20 This would be the case particularly, as suggested by the Court itself, if sufficient State practice and opinio juris21 showed that an intervention by means of armament of a non-State entity would help in freeing populations from an oppressive regime. Such a rule has not emerged yet.
It is worth pointing that, despite the unlawfulness of arms transfers to NSAGs, these supplies have been increasingly present in the last two decades. This shift of political alliances beyond the State-to-State realm has not yet led to the creation of a de jure norm regulating those transfers.22 Examples include France’s armament of the National Transitional Council (NTC)
in Libya;23 the Islamic State supplied with weapons by China, Russia and Romania;24 Hamas
by North Korea;25 the FSA by Qatar, Iran, UK, France and Turkey; the Syrian Kurds by the
US;26 the Houthis in Yemen supported by Iran,27 and the list goes on.
18 Nicaragua (n 8) para 228; Article 2(4) of the Charter of the United Nations (adopted 26 June 1945, entered into force 24 October) 892 UNTS 119.
19 The prohibition on the threat or use of force was held to be customary law in Nicaragua (n 8) paras 187-190; confirmed in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, para 87.
20 Nicaragua (n 8) para 206.
21 State practice and opinio juris are the two requirements for the creation of a customary rule as held by the ICJ in the North Sea Continental Shelf cases (Federal Republic of Germany v Netherlands/Denmark) (Judgment) [1969] ICJ Rep 3, para 77.
22 Denise Garcia, ‘Arms Transfer Beyond the State-to-State Realm’, International Studies Perspectives (2009) 151. 23 Richard Spencer, 'France Supplying Weapons to Libyan Rebels', The Telegraph (29th June 2011) <https://www.telegraph.co.uk/news/worldnews/africaandindianocean/libya/8606541/France-supplying-weapons-to-Libyan-rebels.html> accessed 10th June 2020.
24 Conflict Armament Research, ‘Weapons of the Islamic State’ (2017) <https://www.conflictarm.com/reports/weapons-of-the-islamic-state/> accessed 30th May 2020, 14.
25 Con Coughlin, ‘Hamas and North Korea Secret Arms Deal’ Business Insider (27th July 2014) <https://www.businessinsider.com/hamas-north-korea-arms-deal-2014-7?IR=T> accessed 10th June 2020. 26 Stewart Phil ,‘U.S. Starts Providing Weapons to Syrian Kurds’, Reuters, (30 May 2017) https://www.reuters.com/article/us-mideast-crisis-usa-kurds/u-s-starts-providing-weapons-to-syrian- kurds-idUSKBN18Q2AL> accessed 10th June 2020.
27 BBC, ‘Iran Supplies Yemen Rebels with Ballistic Missile – US’ BBC News, Middles East; (14 December 2017) < https://www.bbc.com/news/world-middle-east-42356969> accessed 10th June 2020.
II.
Aims of the ATT
A. Context of the ATT with regards to NSAGs
i. Obstacles facing the establishment a general regulation
Most of the previous efforts to regulate global arms trade focused solely on SALW. The drafting procedures of these instruments were generally faced with two obstacles in relation to a potential regulation covering NSAs. First, the diversity in motives, resources and structure of NSAs have generally made the definitional task for an emerging regulation particularly complex.28 In fact, non-State entities encompass a wide range of actors, whose labelling as a NSA might vary from one State’s perspective to another. These could include for example armed rebel groups, freedom fighters, and warlords; private military or security corporations, paramilitaries closely related to the State; political parties; arms traders in the domestic market of black market; criminal groups; civil institutions such as museums; and civilians such as hunters, gun shooters and collectors.29
Secondly, State disagreement on the legitimacy of a regulation also generally interferes with the potential emergence of an international norm. Three groups of States with diverging positions can be identified.30 A first category argues for a complete ‘blanket-ban’ of arms transfers to NSAGs.31 This position is adopted by a majority of States in the Global South, and most vocally by African States having suffered from the invasion of external powers during the colonization period, and who seemingly fear that allowing such transfers would once again interfere with their internal affairs.32 From a legal perspective, this position is in line with the non-intervention principle and the prohibition on the threat and use of force.
The ‘hard cases’ approach upholds that it is be sometimes legitimate to authorize arms transfers that help insurgent movements to defend themselves from an oppressive central government.33
In fact, States do not always protect their own population and might abuse of their military
28 Paul Holtom, ‘Arms Transfers to Non-State Actors and the Arms Trade Treaty’ (2012) Stockholm International Peace Research Institute, 9-13; Capie (n 5) 2; Garcia (n 22) 157.
29 Owen Greene, ‘Small Arms and Light Weapons Transfer: Developing Understandings on Guidelines for National Controls and Transfers to Non-State Actors’ (2006) Small Arms Consultative Group Process 3, 6. 30 Enomoto (n11) 11.
31 Holtom (n 28) 13-15. 32 Enomoto (n 11) 11.
33 Biting the Bullet Project, ‘Developing International Norms to Restrict SALW to Non-State Actors’ (2006) Small
Arms Survey,
<https://www.files.ethz.ch/isn/124866/FINAL%20cgp%20report%20on%20restricting%20SALW%20transfers %20to%20NSAs%209%20jan.pdf> accessed 11th June 2020.
power against defenceless citizens.34 This position has been often adopted by the US, and other States mostly from the Global North, despite the lack of lawful grounds.
A third group advocates for regulations looking at the potential risks of IHL and IHRL violations as decisive criteria regardless of whether the recipient is a State or a NSA.35 As it will be discussed, the ATT seems to have adopted the third approach. Although this is a meaningful step towards prohibiting arms transfers to NSAGs in certain situations, the position of the ATT does not shed light on the general legality of arms transfers to these groups.
ii. Previous attempts to regulate arms transfers to NSAs
Unsuccessful attempts to introduce legally-binding instruments on a global regulation of SALW transfers to NSAGs show the complexity in overcoming the two legal controversies mentioned supra (namely, defining a non-State entity and the moral dilemma of arming a group in need of foreign help). For example, in 1998, Canada issued a discussion paper calling for the establishment of a Convention Against the International Transfer of Military Small Arms and Light Weapons to Non-State Actors.36 The proposal aimed to ensure that SALW were regulated with transparency and did not fall into the wrong hands. Canada offered a definition of a State actor, and suggested that any entity not meeting this description would be considered as a NSA.37 The proposal also highlighted the view that, even in cases of oppressive regimes,
armament of NSAs would lead to a risk in escalation of violence and the legacy of a ‘weaponized society’, therefore arguing for a complete ban.38 The proposal was unsuccessful
due to the lack of political will from States to take part in the instrument.
The 2001 UN Programme of Action to Prevent, Combat and Eradicate Illicit Trade in Small and Light Weapons39 (PoA) also demonstrates the lack of general agreement towards a global regulation. A provision expressly mentioning a complete ban on arms transfer to NSAs was
34 Chris Smith, ‘Weapons Transfers to Non-State Armed Groups’ in Kerstin Vignard (ed.), Engaging Non-State
Armed Groups, United Nations Institute for Disarmament Research, 51.
35 Enomoto (n 11) 13.
36 Discussion Paper: ‘A Proposed Global Convention Prohibiting the International Transfer of Military Small Arms and Light Weapons to Non-State Actors’, Canadian Mission to the UN, New York, 1998.
37 Holtom (n 28) 7. 38 ibid.
39 Report of the United Nations Conference on the Illicit Trade in Small Arms and Light Weapons in All Its Aspects, UN Doc. A/CONF.192/15 (New York, 9-20 July 2001)
firmly disagreed by the US,40 and more quietly by other States.41 Once again, the main obstacle lied in the lack of a global consensus concerning the definition of NSAs42 and the ethical dilemma surrounding the transfer of weapons sent to insurgent movements fighting an oppressive regime.
Some instruments have nevertheless developed at regional level. In Europe, the non-binding Joint Action Programme 1998, amended in 2002, adopts a blanket-ban approach by providing that transfers of SALW should only be conducted between governments.43 In Africa, the ECOWAS Convention44 completely prohibits the transfer of SALW to ‘non-state actors that are not explicitly authorized by the importing State’.45 However, it does not provide a definition
of NSAs. The Kinshasa Convention46 opted for a ban of SALW but only to NSAGs rather than NSA (NSAGs being a certain type of NSAs). It defines them as a ‘a group that could potentially use weapons as part of its use of force in order to achieve political, ideological, or economic goal, but which is not part of the formal military establishment of the State’.47 Despite not
entering into force, the Kinshasa Convention seems to adopt the most adequate scope of application. In fact, although several types of NSAs contribute to illicit arms trade, the Convention opted to focus exclusively on NSAGs since they create a greater risk of international crimes and IHL and/or IHRL violations, compared to other NSAs like private military corporations or gun collectors.
iii. UN Security Council Arms Embargoes
Under Article 41 of the UN Charter, the UN Security Council (UNSC) has the power to adopt non-forceful sanctions, which may take the form mandatory arms embargoes to NSAGs. They are the only legally-binding tools to internationally tackle arms transfer alongside the ATT.
40 Edward Peartree and US Department of State, Bureau of Political-Military Affairs, ‘Views: Bans on Transfers of Small Arms and Light Weapons to Non-State Groups’ (January 2002).
41 Russia, Syria, Iran. If the US had adopted another position, opposition would have very likely come from the Arab block; see Garcia (n 22) 156.
42 Holtom (n 28) 10.
43 Council Joint Action of 12 July 2002 on the European Union's contribution to combating the destabilising accumulation and spread of small arms and light weapons and repealing Joint Action 1999/34/CFSP, Article 3(b). 44 Economic Community of West African States, Convention on Small Arms and Light Weapons, their Ammunition and other related materials (adopted on 14 June 2006, entered into force on 29September 2006) (“ECOWAS Convention”).
45 ibid, Article 3(2).2
46 Central African Convention for the Control of Small Arms and Light Weapons, their Ammunition, Parts, and Components that can be used for their Manufacture, Repair and Assembly (adopted on 30 April 2010, no entry into force).
They nevertheless face several obstacles. For example, the reliance on the will of States to comply with the embargoes entails that they often disregard these sanctions when political interests are at stake.48 Arms embargoes ‘have suffered from uneven (or sometimes almost non-existent) implementation and are seen increasingly as being weak political positions that are not enforced’.49 Another difficulty lies in the veto power50 of the five Permanent Members (P5) of the UNSC who also represent the world’s biggest arms exporters.51 It is of course easily conceivable that some of the P5 would reject proposals for arms embargoes if it jeopardised their own financial and political interests in the supply of weapons to a NSAG. Lastly, the fact that arm embargoes focus on specific armed groups and are limited in time and geographical scope means that they do not meet the calls for a general regulation that would apply to all NSAGs.
In 2006, the GA Resolution 61/8952 encouraged Member States to submit their views and
comments for the adoption of a future ATT.53 Several States kept their hopes and protested their
willingness for a general regulation on the transfer of weapons to NSAs. The matter was brought at every stage of the preparations for the 2012 UN ATT negotiations conference.54 Particularly, the issue was heavily discussed at the Preparatory Committee meetings of the ATT in 2010-2012, where a majority of States from the Global South issued statements towards a blanket-ban of arms transfer to NSAs. This included Brazil, China, Côte d’Ivoire, Cuba, India, Indonesia, Liberia, Mali, Nigeria, Turkey, and Zimbabwe; Statements from the African Group, the ECOWAS, the Caribbean Community; Joint Statements from Argentina, Chile, Colombia, Guatemala, Jamaica, Mexico, Peru, Trinidad and Tobago, and Uruguay. 55 However, the Chairman’s draft papers omitted to raise the issue.56 Instead, the final version of the ATT, under
Article 6(2), simply reiterates the obligations found in international agreements. Consequently, although being in line with general international law, the ATT does not strictly and expressly
48 Matthew Moore, ‘Arming the Embargoed: a Supply-Side Understanding of Arms Embargo Violations’ 54(4) Journal of Conflict Resolution 593.
49 Bonn International Centre for Conversion, ‘Design and Implementation of Arms Embargoes and Travel and Aviation Related Sanctions: Results of the Bonn-Berlin Process’ (2001), 99-100.
50 The veto power derives from Article 27 UN Charter.
51 From 2015 to 2020, first comes the US, then Russia, Germany, China and the UK; see Stockholm International Peace Institute, ‘Top-List Trend Indicator Value’ <http://armstrade.sipri.org/armstrade/html/export_toplist.php> accessed 15th June 2020.
52 UNGA Res 61/89 (18 December 2006) UN Doc A/RES/61/89. 53 ibid, para 1.
54 Holtom (n 28) 3. 55 ibid, 4-5. 56 ibid, 3.
prohibit the supply weapons to armed groups.57 Neither does it bring clarity the legal debate on whether such transfers could potentially be allowed in exceptional situations.
B. Object and Purpose of the ATT
i. Negotiations
Article 1 of the ATT itself establishes the object and purpose of the Treaty. The provision is derived from the 2010 UN Resolution 64/4858 which highlighted the necessity for the international community to address two issues: the lack of international regulation and illicit trade in conventional arms.59 During the negotiations, tensions arose in July 2012 after the
submissions of the first Draft which described the object of the ATT as the prevention of diversion of conventional arms ‘to the illicit market or for unauthorized end use’.60 Several States, most noticeably Russia, expressed their disagreement with the wording of ‘unauthorized end use’ and suggested to replace or add the terms ‘unauthorized end users’61. They argued
that, while the former terminology would cover unlawful use of conventional weapons by any recipient, the latter language would particularly cover the supply of conventional weapons to unauthorized NSAs.62
ii. Ambiguity in the final version
Eventually, participating States did not adopt either of the debated wordings and opted for a rather broad language. The ATT’s object is to ‘establish the highest possible standard (…) for regulating the international trade in conventional arms’63 and to ‘prevent and eradicate the illicit
trade in conventional arms and prevent their diversion’.64 The fact that the Treaty does not expressly cover the supply of weapons to unauthorized end users (and thus unauthorized NSAGs) was one of the main reasons for several States to refrain from adopting the instrument or simply vote against it in the General Assembly.65 Despite the fact that the wording ‘end use’ could potentially encompass the supply of conventional weapons to NSAGs, these States wished for an express provision covering transfers to these groups. Surprisingly though, it must
57 Enomoto (n 11) 16.
58 UNGA Res 64/48 (12 January 2010) UN Doc A/RES/64/48. 59 ibid, twelfth paragraph of the Preamble.
60 Andrew Clapham, Stuart Casey-Maslen, Gilles Giacca, Sarah Parker, The Arms Trade Treaty: A Commentary (OUP 2016) (“ATT Commentary”), 44.
61 ibid. 62 ibid.
63 ATT, Article 1. 64 ibid.
be pointed that most GA Resolutions which recall the obligations of the ATT and which plan the yearly Conferences of the State Parties always stipulate that the ATT’s goal focuses the prevention of diversion for ‘unauthorized end use and end users’66. Even if one considers this language to be less relevant due to the the non-binding nature of GA resolutions, it must be noted that the Preamble of the Treaty itself adopts the exact same wording, and therefore includes ‘unauthorized end users’.67
As a result, the refusal to include ‘unauthorized end users’ in Article 1 on the object and purpose but keeping these terms in other parts of the Treaty and related documents leads to ambiguity on the will of the State Parties to tackle NSAGs or not. This might therefore lead to difficulties in regard to treaty interpretation. In fact, although Article 1 can help in interpreting the ATT, Article 31(2) VCLT68 highlights that in order to interpret a treaty provision, the object and
purpose of a treaty must be identified, looking primarily at its Preamble.69 Therefore, the
diverging language between Article 1 and the Preamble on the potential inclusion of NSAGs could lead to incoherence in interpretation by the States Parties, or any relevant court or tribunal. The wide scope of the ATT’s ‘purpose’ found in Article 1 also suggests that NSAGs could be covered by the Treaty. In fact, Article 1 describes the purpose as ‘contributing to international peace and security; reducing human suffering; promoting cooperation and transparency in the international trade of conventional weapons among States Parties’.70
If one was to adopt a teleological approach of treaty interpretation, the ATT could highlight constructive ambiguity. In fact, the instrument seems to purposely avoid the terms ‘end users’ in Article 1 by only focusing on the prevention of diversion regardless of the recipient. At the same time, the fact that NSAGs are indirectly covered in the ATT Preamble and related GA Resolutions suggests that such an incoherent language aimed at having a majority of States to agree on the Treaty’s goals. In that way, the ATT portrays a language of safeguards, or ‘necessary evils’71, which satisfy the interest of States that have long rooted for a regulation of
conventional weapons to NSAGs but also those who whished to keep their exports not too
66 For example: UNGA Res 74/89 (19 December 2019) UN Doc A/RES/74/89; UNGA Res 70/58 (11 December 2015) UN Doc A/RES/70/58.
67 ATT, third paragraph of the Preamble.
68 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (“VCLT”).
69 ibid, Article 31(2). 70 ATT, Article 1.
71 Yasuhito Fukui, ‘The Arms Trade Treaty: Pursuit for the Effective Control of Arms Transfer’ (2015) 20(2) Journal of Conflict and Security Law 301, 317.
strictly regulated if their weapons ended in the hands of armed groups. Despite the ambiguity and broad language, it can still be concluded that NSAGs are not excluded from the prevention of diversion. Also, the language of ‘illicit trade’, although being undefined by the Treaty, also seems to encompass a wide range of practices and thus potentially transfers to NSAGs.72
III. Substantive provisions covering NSAGs in the ATT
This section analyses three substantive obligations of the ATT which, at first sight, could regulate transfers of weapons to NSAGs. Article 6 provides instances where transfers of conventional weapons and related items are prohibited. Article 7 concerns the export assessments that must be conducted prior to embarkation of the arms and what measures to adopt when a risk of IHL or IHRL occurs. Article 11 specifically addresses the issue of diversion. The point here is to examine the substance of these provisions, and whether they manage to fill in the gap left by a lack of regulation focusing specifically on NSAGs.
A. Article 6: Prohibitions
Article 6 prohibits a State Party to allow the transfer of conventional weapons or related items in three situations: (1) if the transfer violates the State’s obligations issued by the UNSC under Chapter VII of the UN Charter, especially arm embargoes;73 (2) if the transfer violates its obligations under international agreements to which it is a State Party, in particular those concerning the transfer or illicit trafficking of conventional weapons and;74 (3) if the State has
knowledge, at the time of authorization, that the transfer would lead to the commission of genocide, crimes against humanity, graves breaches of the GCs, attacks directed against civilian objects or people, or other war crimes.75
i. Negotiations
Hardly any disagreement arose during negotiations in relation to the first paragraph of Article 6 prohibiting arms transfers that would violate a UNSC arm embargo. In fact, a majority of States agreed that this provision had the potential to improve enforcement measures in order to respect arms embargoes at national level.76 On the other hand, the last two paragraphs of Article
6 were subject to much debate during the negotiations. There was of course controversy on the
72 ATT Commentary (n 60) 48. 73 ATT, Article 6(1).
74 ibid, Article 6(2). 75 ibid, Article 6(3).
76 Clara da Silva and Penelope Nevill, ‘Article 6: Prohibitions’ in Clare Da Silva and Brian Wood (eds.), Weapons
inclusion of a prohibition of arms transfers to NSAs. Russia, Belarus and Sudan were of those still promoting a blanket-ban at a late stage of negotiations in 2013.77
Additionally, the 2012 Draft Treaty prohibited States to transfer weapons ‘for the purpose of facilitating or committing’78 the violations mentioned in the current Article 6(3). This
terminology led to significant discussion during the negotiations. As rightly pointed by the International Committee of the Red Cross (ICRC), this wording is identical to the ‘intent’ threshold adopted by the Rome Statute on individual responsibility for aiding and abetting.79 It would therefore be inadequate to use the standard of individual responsibility for situations covering the responsibility of States.80 Also, the threshold of ‘intent’ is significantly high. Proving that a State intended to facilitate the commission of the violations provided through the supply of weapons would have made the provision nearly inoperable.81 It would not have
prevented supplies that actually facilitated the commission of those crimes, even when the State knew about the violations. The threshold of ‘knowledge’ adopted in the final version will be discussed infra.
ii. Paragraph 1: UN arms embargoes
Despite the willingness of States Parties to respect measures adopted by the UNSC, the controversies of UN arms embargoes must still be kept in mind, as discussed supra.82 These types of sanctions can also lead to devastating consequences, as it was the case after Yugoslavia requested the UNSC to issue a global embargo covering all parties to the conflict.83 This led to
the superiority of Bosnian Serbs who had access to the stockpiles of the national army and whose superiority in armament contributed to ethnic cleansing of Bosnian Muslims.84 As a result, although Article 6(1) reiterates the obligation of States Parties to respect the authority of
77 ibid, 90.
78 Draft Arms Trade Treaty, (26 July 2012) UN Doc A/CONF.217/CPR.1 (“Draft 2012”), Article 5(5); see ATT Commentary (n 60) 182.
79 Article 25(3)(c) raises individual responsibility for aiding and abetting if the act was committed ‘for the purpose’ of facilitating the crime; see Rome Statute of the International Criminal Court, (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3 (“Rome Statute”), Article 25(3)(c);
80 Statement of the ICRC, UN Diplomatic Conference on the Arms Trade Treaty (21 March 2013), <https://www.icrc.org/en/doc/resources/documents/statement/2013/03-21att-arms-availability-statement.htm>, accessed 25th May 2020.
81 ibid.
82 See Chapter II.A(iii).
83 Malcom Rifkind, ‘A call to arm Syria’s rebels’, New York Times (8 August 2012), <http:// www.nytimes.com/2012/08/09/opinion/a-call-to-arm-syrias-rebels.html >, accessed 26 February 2020.
the UNSC, it does not provide a solution to the absence of a general regulation in cases other than targeted prohibitions established by the UNSC.
iii. Paragraph 2: international agreements
Article 6(2) provides that a transfer of weapons is prohibited if it violates a transferring State’s obligation under international agreements. This of course includes disarmament treaties but also the UN Charter. In Nicaragua, the ICJ held that the ‘arming and training’ of armed groups would constitute a breach of the prohibition on the threat or use of force found in Article 2(4) of the Charter.85 It did not expressly hold that ‘mere arming’ (without military training) was a breach of the prohibition on the threat or use of force. However, while discussing whether the US had the right to self-defence, the Court also held that ‘assistance to rebels in the form of the provision of weapons or logistical or other support’ was not an armed attack but may be regarded as a threat or use of force.86
In Nicaragua, the Court also established that a breach of Article 2(4) is itself a breach of the non-intervention principle: ‘coercion, which defines, and indeed forms the very essence of, prohibited intervention, is particularly obvious in the case of an intervention which uses force, either in the direct form of military action, or in the indirect form of support for subversive or terrorist armed activities within another State’.87 If one was to argue that arming a NSAG does
not constitute a breach of Article 2(4) of the UN Charter, it at least amounts to a breach of the non-intervention principle. This customary rule88 is not expressly covered by the UN Charter
and it must be noted that Article 6 of the ATT does not oblige States to cancel transfers that would breach a customary obligation. As provided by the VCLT though,89 subsequent practice can change the meaning of a Treaty obligation. The subsequent practice of Article 2(7) UN Charter suggests that Member States have an obligation not to intervene in the internal affairs of another State.90 This entails that a supply of weapons to a NSAG breaches the Article 2(7)
85 Nicaragua (n 8) para 228. 86 ibid, para 195.
87 Nicaragua (n 8) para 205.
88 Non-intervention was held to be part of customary law in Nicaragua (n 8) para 206. 89 VCLT (n 68) Article 31(3)(b).
90 A literal interpretation of Article 2(7) only puts an obligation on the UN not to intervene in the internal affairs of its Member States. However, the Friendly Relations Declaration (n 15) (Third Principle) defining intervention helps in interpreting Article 2(7) in a broader way so as to put the obligation on all States not to intervene on the internal affairs of another. Brownlie points that the ‘Declaration provides evidence (…) on the meaning of the United Nations Charter’ in Ian Brownlie, Basic Documents in International Law, (5th ed. OUP 2002) 27; see also Dominic McGoldrick, ‘The Principle of Non-Intervention: Human Rights’ in Vaughan Lowe and Colin Warbrick (eds.), The United Nations and the Principles of International Law (Routledge 1994) 85.
of the UN Charter and that the States Parties to the ATT are completely prohibited to authorize these transfers under Article 6(2).
Consequently, arming NSAG very likely amounts to a breach of the UN Charter, either under Article 2(4) or under Article 2(7), and thus also to a violation of Article 6(2) of the ATT. Nonetheless, diverging interpretations by State Parties might also lead to significantly different outcomes. For example, certain States Parties might argue that the Nicaragua judgement is not a binding source of law91 or an outdated version of international law. They might also take the view that a use of force requires a minimum threshold of gravity and hostile intent and argue that the mere arming of a NSAG is thus not a use of force in itself.92 Additionally, each State Party might have their own opinion as to whether subsequent practice has modified the meaning of Article 2(7) of the UN Charter. Transferring States could simply argue that the non-intervention principle is solely customary and is not covered by the Charter. This view entails the ATT would not prevent Parties to send weapons to NSAGs, since the Treaty does not prohibit transfers that would breach customary law.93
It cannot be denied that the ATT remains consistent with general international law. However, the current text under Article 6(2) still leaves room for ambiguity. In order to bring a clear and uniform position on the general legality of transfers to NSAGs, the ATT should have expressly concluded that these supplies are completely prohibited (or it could have at least provided that a transfer is prohibited also if it leads to a breach of customary law). Alternatively, it should have clarified whether third States have a right to arm a NSAG in exceptional circumstances (see infra).94
iv. Paragraph 3: international crimes
Article 6(3) of the ATT helps to fill in the gap left by a lack of a general regulation on transfers to NSAGs, but only to a certain extent. In fact, a State Party cannot authorize a transfer if it has
knowledge, at the time of the authorization, that the arms or related items would be used to 91 For example, they could use Article 59 of the Statute of the International Court of Justice (adopted 24 October 1945) 33 UNTS 933 (entered into force 18 April 1946).
92 Certain academics argue that a de minimis threshold of gravity and hostile intent are required for a use of force to be found; see Olivier Corten, The Law Against War: the prohibition on the Use of Force in Contemporary
International Law (2010 Hart Publishing) 55 & 77; see also the arguments of the Independent International Fact
Finding Mission on the Conflict in Georgia, Report Vol. II, September 2009, 232 & 286.
93 It would have been preferable for Article 6(2) to provide that ‘transfers of weapons must be prohibited if they lead to a breach of a customary norm’, in addition to ‘international instruments to which the transferring State is a Party’.
commit genocide, crimes against humanity, grave breaches of the four GCs, attacks on civilian objects or people, or other war crimes defined by international agreements. The provision does not require the act to actually take place. Instead, it serves a preventive purpose and provides that if the State Party has knowledge that the violation would occur, the transfer cannot be authorized.95
Despite lowering the threshold of the mental element of the 2012 Draft Treaty from ‘intent’ to ‘knowledge’, the latter is not so useful. In fact, the current test set out in Article 6(3) is a subjective one. Relying solely on the belief of States Parties that weapons would not be used to commit atrocities allows them to grant a domestic licence without sufficient inquiry.96 Without an external objective judgment, States Parties can easily escape their liability for a breach of Article 6(3) by arguing that they simply did not know about the potential violation(s). This is further emphasized by the fact that it is an extremely difficult task to challenge a transferring State as the evidence about what they ‘know’ and ‘don’t know’ is hardly accessible to the public.97 Although Article 6(3) focuses on the duty of State Parties to conduct an inquiry
towards the use of the weapons, it unfortunately does not create a liability for negligence.98
An objective standard of knowledge would have been preferable. In fact, States increasingly invest in advanced technologies and resources that enable them to access foreign intelligence.99 This is especially the case of powerful and wealthy States who, quite often, also stand as huge exporters of conventional weapons. Therefore, it is expected that these States know about the dangers of their own transfers. Opting for a constructive knowledge test would thus have created more responsibility on the transferring States to inquire on the (mis)use of the weapons (by adopting the terms ‘knows or ought to have known’100 for example). In that sense, States would be responsible if it is found that they should have known about the potential crimes. This objective test would further encourage States to ensure that weapons would not facilitate the
95 ATT Commentary (n 60) 205.
96 Laurence Lustgarten, ‘The Arms Trade Treaty: Achievements, Failings and Future’ (2015) 64 International and Comparative Law Quarterly 560, 589.
97 Valentina Azarova, ‘A Hard Sell? Arms Export Licensing and International Responsibility for Unlawful Arms Transfers – Part I’ (23 January 2020), Opinio Juris <http://opiniojuris.org/2020/01/23/a-hard-sell-arms-export-licensing-and-international-responsibility-for-unlawful-arms-transfers-part-i/> accessed 28 April 2020.
98 ibid. 99 ibid.
100 This type of language has been adopted by the European Court of Human Rights in relation to breaches of the Convention for facilitating acts of torture; see for example El-Masri v The Former Yugoslav Republic of
Macedonia App no 39630/09 (ECHR, 13 December 2012), paras 218-221; Husayn (Abu Zubaydah) v Poland App
violations provided. With such a test, the UK Secretary of State for International Trade would have likely been liable for a breach of Article 6(3) in the case of Campaign Against Arms Trade
(CAAT) v UK.101 In that case, the judicial review succeeded on one of the four grounds relied on by the Appellant: the Secretary of State failed to inquire on potential IHL violations towards the exports of weapons to Saudi Arabia which might have been used in the Yemen conflict.102 With an objective test though, the Court would have also likely found that the UK should have
known about the breaches of war crimes being committed in Yemen. This would have triggered
the liability of the Secretary of State for a breach of Article 6(3).103
With regard to the potential violations themselves, the ATT does not define the terms of genocide, crimes against humanity, attacks against civilian people and objects. For interpretation purposes, Article 31 VCLT requires to look at the ‘ordinary meaning’104 of the
terms, as well as ‘relevant rules of international law applicable in the relation between the parties’105. It is not uncommon for courts and tribunals to use provisions of other treaties to help
interpreting terms of the treaty under consideration.106 This therefore directs the interpreter to
look at Article II of the Genocide Convention107 for genocide and at the Rome Statue for crimes against humanity.108 As members of a NSAG are in fact capable of committing these crimes, they are thus covered by this provision.
Article 6(3) also refers to the risk of ‘grave breaches’ of the four GCs as a ground for not authorizing arms transfers. At the 2012 UN Conference, the ICRC suggested that ‘grave breaches’ are terms used in instruments covering international armed conflicts (IACs).109 At
101 R (on the application of Campaign Against Arms Trade) v Secretary of States for International Trade, [2019] EWCA Civ 1020 (“CAAT v UK”).
102 ibid, paras 132-145; Nota bene: the proceedings are still taking place as the UK government has appealed to the Supreme Court. See: CATT website, ‘Stop Arming Saudi: Judicial Review’ (7th July 2020) <https://www.caat.org.uk/campaigns/stop-arming-saudi/judicial-review> accessed 21st July 2020.
103 Nota bene: the CAAT v UK case did not refer to the ATT itself but similarities with the EU Common Position on exports control help to understand several points in this work.
104 VCLT (n 68) Article 31(1). 105 ibid, Article 31(3)(c).
106 Richard Gardiner, Treaty Interpretation (1st edn., OUP 2010), 281-282.
107 UNGA, Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UN TS 277, Article II; the Rome Statute adopted the same definition to the Genocide Convention in Article 6.
108 Rome Statute (n 79) Article 7; Nota bene: there remains debate as to whether the definition adopted by the ICC reflects customary international law. The Rome Statue creates a Court and lists the crimes covered by its jurisdiction but the fact that the ATT does not refer strictly to the Rome Statute means it might other definitions fond in other instruments; see ATT Commentary (n 60) 218-219 and Da Silva and Nevill (n 76) 99.
109 Statement of the ICRC, UN Diplomatic Conference on the Arms Trade Treaty (12 July 2012), <https://www.icrc.org/en/doc/resources/documents/statement/2012/att-arms-availability-statement-2012-07-12.htm> accessed 28th May 2020.
first sight, Article 6(3) would thus not cover potential violations of IHL during a NIAC to which a NSAG is a party. A literal interpretation of this provision entails that a State could transfer weapons to a NSAG, regardless of the risk that the armed group would commit breaches of the IHL rules applicable to it. However, serious violations of Common Article 3 to the four GCs, which covers NIACs, fall under the last category of ‘war crimes as defined by international agreements’ also mentioned by Article 6(3).110 In that sense, if there is a risk of a violation of
Common Article 3 by a NSAG, a State cannot authorize the transfer.
In conclusion, Article 6 does not completely fulfil the legal gap left by a lack of regulation on transfers of conventional weapons to NSAGs. First, applying Article 6(2) to those supplies might lead to very different outcomes. Additionally, States seem to be able to escape their liability under Article 6(3). Technically, Article 6(3) covers transfers of weapons to NSAGs since the violations which must be avoided can be committed by the members of a NSAG. A transferring State must therefore act with the same duty of care whether the recipient is a State or a NSAG. However, in general terms, it is a difficult task to prove that the State had knowledge on the potential commission of genocide, crimes against humanity, attacks on civilians, and other war crimes. As a result, the criteria required before a transfer of weapons to a NSAG is prohibited are too vague in Article 6(2) and too narrow in Article 6(3).
B. Article 7: Exports
Paragraph 1 of the Article 7 provides that if a transfer of conventional weapons and related items is not prohibited by Article 6, exporting State Parties must conduct an assessment taking into account several factors. These are whether a) the arms or weapons would contribute to or undermine peace and security and b) whether they would be used to commit or facilitate i) serious violations of IHL ii) serious violations of IHRL, iii) an act of terrorism or iv) an act amounting to a transnational crime. Paragraph 2 obliges States to consider measures in order to mitigate the risk of the dangers set out in Article 7(1). Paragraph 3 mentions that, only if the risk is ‘overriding’, the exporting State cannot authorize the transfer.
i. Serious violation of humanitarian law
For the purpose of Article 7(1)(b)(i), the scope of a serious violation of IHL is broader than that provided by Article 6(3). Here, such violations include: grave breaches of the GCs111 and
110 Rome Statute (n 79) Article 8(2)(c); see also ibid.
Additional Protocol I,112 serious violations of Common Article 3 to the four GCs, war crimes as defined by Article 8 of the Rome Statute, but also other war crimes under customary international law in IACs and NIACs.113 As IHL rules apply to NSAGs during NIACs,114 an overriding risk that a NSAG would breach an IHL rule entails that the exporting State cannot supply them with weapons. As clarified by the ICRC after the adoption of the ATT, ‘a risk assessment that the weapons would be used to commit IHL violations should be conducted regardless of whether the recipient is a State or a non-State actor’.115 At first glance, Article 7(1)(b)(i) therefore seems to act as a valuable control provision for the transfer of conventional weapons and related item to NSAGs.
Nonetheless, it is unlikely that Article 7 would allow a court or tribunal to decide on the merits of an export authorization. In fact, Article 7 does not provide how the export assessment must be conducted. Thus, a State will only be responsible for a breach of Article 7 if it did not conduct the assessment at all. As shown in the CAAT v UK case, the judicial review only aimed at considering whether the Government decision to grant domestic licences was irrational or not. The Court of Appeal did not decide whether there were actual risks of IHL violations on the ground. The Divisional Court had already decided that since the senior officials advising the Secretary of State had established the decision to send weapons was ‘finely balanced’, it was an indicator of ‘anxious scrutiny’.116 In the context of the ATT, the wide discretion granted under Article 7 similarly allows exporting States to conduct the assessment the way they wish even if, in fact, the weapons would be used to commit IHL violations by a State or a NSAG.
ii. Serious violation of human rights law
The question of whether NSAGs must respect IHRL obligations has been subject to significant debate in international law. However, it would seem controversial to hold that these entities are subject to the rules of IHL but not in relation to human rights, as noted by the ATT
112 Protocol Additional to the four Geneva Conventions of 12 August 1949, and relating to the Protection of International Armed Conflicts’ (adopted on 12 December 1977, entered into force on 6 June 1977) 1125 UNTS 3, Articles 11 and 85.
113 ICRC Brief, ‘Protecting Civilians and Humanitarian Action throughout the Arms Trade Treaty’ (November 2013) <https://www.icrc.org/en/doc/assets/files/publications/icrc-002-4069.pdf> accessed 30th May 2020, (« ICRC Brief »), 4; see also ATT Commentary (n 60) 257.
114 Common Article 3 to the four GCs (n 6).
115 ICRC, ‘Arms Transfer Decisions: Applying International Humanitarian and International Human Rights Law Criteria. A Practical Guide’, (August 2016) <https://shop.icrc.org/decisions-en-matiere-de-transferts-d-039-armes-application-des-criteres-fondes-sur-le-droit-international-humanitaire-2814.html> accessed 1 June 2020, 11.
116 R (on the application of Campaign Against Arms Trade) v Secretary of State for International Trade, [2017] EWHC 1726 (QB) para 209.
Commentators.117 They argue that the Treaty is purposely cautious to avoid referring to human rights treaties and instead covers human rights law. Truly, treaties have been negotiated and adopted by States only and a NSAG cannot adopt the enforcement mechanisms provided by these instruments.118 However, despite accountability obstacles, NSAGs are still ‘in principle’ capable to respect human rights obligations per se.119
The position adopted by the ICRC is that IHRL should apply to NSAGs when they possess the
de facto capacity to act like governments.120 The UN seems to increasingly adopt a similar view. For example, the 2014 UN report on South Sudan clearly held that the ‘most basic human rights obligations’, especially jus cogens norms, bind States and NSAGs in times of peace and in times of conflict.121 Identical statements were adopted by the he UN Commission of Inquiry on Syria in relation to the FSA122 and the UN Secretary General Panel of Experts on Accountability
in Sri Lanka towards the Liberation Tigers of Tamil Ealam (LTTE).123
Despite the increasing amount of references to NSAGs as subjects of IHRL by international organizations and agencies, there is no general consensus amongst States that these groups incur legal obligations under the IHRL regime.124 The ATT could have brought clarity to the debate by making a clear reference to NSAGs in Article 7(1)(b)(ii) or in a provision focusing exclusively on these groups. This omission entails that certain States Parties could neglect to conduct export risk assessments with regards to the potential human rights violations when the weapons are sent to NSAGs. Even for States believing that IHRL obligations apply to NSAGs, it is unclear what rights should be envisaged (all rights, or rights ‘in the capacity’ to be respected by the armed group?), what threshold of authority over the population is required or the territorial scope where the risk of violations might occur.125
117 ATT Commentary (n 60) 267.
118 Andrew Clapham, ‘Non-State Actors’ in Daniel Moeckli et al (eds.) International Human Rights Law (3rd edn., OUP 2018), 571; Christopher Greenwood, ‘Scope of Application of Humanitarian Law’ in D. Fleck (ed.), The
Handbook of Humanitarian Law in Armed Conflict (2nd edn., OUP 2007),
119 Greenwood (n 118) 76; ATT Commentary (n 60) 268.
120 Alexander Breitegger, ‘The Legal Framework Applicable to Insecurity and Violence Affecting the Delivery of Health Care in Armed Conflicts and Other Emergencies’ (2013) 96 IRRC 83, 88; Nota bene: only a very limited number of NSAGs possess the the ability to act like de facto governments.
121 United Nations Mission in the Republic of South Sudan (UNMISS), ‘Conflict in South Sudan: a Human Rights Report’ (8 May 2014), para 18.
122 Report of the Independent International Commission of Inquiry on the Syrian Arab Republic (22 February 2012) UN Doc A/HRC/19/69, paras 106-7.
123 Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka (31 March 2011), para 188. 124 ibid, 103.
iii. ‘Overriding risk’
Article 7(3) obliges States to cancel the transfer of weapons if, after having considered the available mitigating measures, there is an ‘overriding risk that of any of the negative consequences in paragraph 1 would occur’.126 The term ‘overriding’ is not defined by the
Treaty. The ATT Commentary thus looks at the Oxford English Dictionary which defines ‘overriding’ as ‘more important than other considerations’.127 This entails that the transferring
State has to balance the positive and negative consequences of the transfer prior to the export. The controversy with this terminology lies in the fact that certain consequences seen as ‘positive’ in the eyes of a State (such as helping a NSAG to defend itself against an oppressive regime) might outweigh the negative consequences of paragraph 1 (i.e. IHL or IHRL violations).128 However, if one of the objectives behind this balancing process was to actually allow transfers to NSAGs, it would have been preferable to mention it expressly and set clear boundaries so as to avoid any abuses. Also, during the negotiations, several States rooted for a lower threshold such as ‘significant’ or ‘substantial’ risk.129 The US were unsurprisingly opposed to this change and eventually prevailed.130 The high threshold currently set by Article 7(3) makes it (too) easy for exporting States to allow transfers of weapons whilst complying with the ATT by simply arguing that, although there was a risk of serious IHL/IHRL violation, the risk was not ‘overriding’.131
C. Article 11: Diversion
Diversion does not simply focus on the movement of weapons from the legal to the illicit market, but rather concerns the unauthorized change in possession or use.132 It also shares
similar features to other types of illicit transfers: they take the form of large amounts of weapons delivered to insurgents, criminals, terrorist groups, or embargoed States through identical transfer methods.133 The UN Office for Disarmament Affairs (UNODA) asserts that diversion usually occurs due to ‘transfer without proper controls, unauthorized retransfer, thefts from
126 ATT, Article 7(3).
127 Oxford Learner’ Dictionaries Online, ‘Overriding’ <https://www.oxfordlearnersdictionaries.com/definition/english/overriding?q=overriding> accessed 21st July 2020. 128 ATT Commentary (n 60) 275. 129 ibid; Lustgarten (n 96) 596. 130 Lustgarten (n 96) 596. 131 ibid. 132 ATT Commentary (n 60) 349.
133 Matt Schroeder, ‘Deadly Deception: Arms Transfer Diversion’ in Graduate Institute of International and Development Studies (ed.), Small Arms Survey 2008: Risk and Resilience (CUP 2008), 114.
poorly secured stockpiles, handouts to armed groups, or barter involving natural resources’.134 As diversion is a subset of illicit trade, preventing it necessitates a specific plan of action compared to other types of illicit transfer.135 This is why the ATT provides a whole provision focusing solely on the issue.
i. Negotiations
Article 11(1) asserts that ‘each State involved in the transfer of conventional arms…shall take measures to prevent their diversion’.136 The adoption of a comprehensive provision focusing
exclusively on preventing diversion was added at the final stages of negotiations.137 Draft papers from 2011 envisaged the obligation for State Parties to adopt measures in case of diversion of exported arms138 and imported arms139 into the illicit markets or to unintended end users. ‘Unintended users’ was then replaced by ‘unauthorized end use’ in July 2012 due to the debate previously discussed on the object and purpose of the Treaty in relation to the potential reference to NSAs.140
Additionally, the initial draft upheld that State Parties must prevent the ‘diversion of conventional weapons’. The final version of the Treaty adopted another formulation whereby States must seek to prevent diversion ‘of the transfer of conventional weapons’, under Article 11(2). The term ‘transfer’ is defined by the Treaty as including export, import, transit, trans-shipment and brokering of conventional arms.141 Yet, the ATT Commentators point that an interpretation which would consider the ordinary meaning of the terms suggests that the obligation of the exporting States is therefore to prevent diversion of conventional arms ‘while
they are being moved or transported’142. This interpretation entails that States Parties are under
the obligation to conduct a risk assessment towards a risk of diversion that would occur before embarkation, in-transit, and point of delivery.143 Exporting States are therefore under no obligation to assess the risk of diversion after the weapons have been delivered. It must be noted that this position adopted in the final version of Article 11(2) greatly differs form the initial
134 UNODA, ‘The Impact of Poorly Regulated Arms Transfers on the Work of the United Nations’ (Occasional Paper No.23 for the United Nations Coordinating Action on Small Arms, 23 March 2013), 3.
135 Schroeder (n 133) 114. 136 ATT, Article 11(1).
137 ATT Commentary (n 60) 343.
138 Chair’s Draft Paper, 14 July 2011 Section VI(A): Authorization Systems, para 6. 139 Ibid, Section VI(A): Notification Systems, para 4.
140 Draft 2012 (n 78); see ATT Commentary (n 60) 344. 141 ATT, Article 2(2).
142 ATT Commentary (n 60) 355. 143 ibid.
formulation which focused almost exclusively on assessing the risk that weapons would be diverted post-delivery ‘within the recipient State’.144 As a result, States Parties will not be responsible for a breach of Article 11(2) if they haven’t assessed the risk that the weapons will be diverted to unauthorized NSAGs after the point of delivery.
ii. Paragraph 2: Risk assessment mechanism for exporting States
Article11(2) places an obligation on the exporting State Parties to: ‘…assess the risk of diversion and to consider the establishment of mitigation measures such as confidence-building measures or jointly developed and agreed programmes by the exporting and importing States.’145 This provision serves a crucial preventive purpose, as most risks can be determined
prior to the embarkation of the weapons.146 Therefore, where conventional weapons end up in the hands of NSAGs, the exporting State Party will be responsible for a breach of Article 11 if it did not assess the risk of a potential diversion. However, several factors lead to the possibility that weapons will end up in the hands of NSAGs, without making the exporting State responsible for a breach of Article 11. These include the lack of guidance on the manner in which the assessment must be conducted (similarly to Article 7), the absence of definition on what amounts to a ‘risk’ of diversion and the weak measures that exporting States are advised to adopt.
First, no precise criterion determines the manner and the threshold of inquiry at which these assessments should be conducted. Article 11(2) relies significantly on the national control system of each Party in accordance with Article 5(2).147 Although, it is understandable that
States do not want to publicly share their assessment reports for national security purposes, it might also result in heavy evidentiary burden for practicing lawyers when seeking to prove that the exporting State did not adequately assess the risk of diversion.148
Secondly, the terms ‘overriding risk’ were avoided due to the controversy in the drafting of Article 7.149 As a result, the lack of guidance on what amounts to a risk of diversion (whether overriding, substantial, very likely to occur,…) leads to difficulties in finding a breach of Article
144 Chair’s Non-Paper, ‘Criteria and Parameters’, undated, Section C(1); see ATT Commentary (n 60) 356. 145 ATT, Article 11(2).
146 Da Silva and Wood (n 76) 195.
147 Article 5(2) of the ATT provides that ‘each State Party must establish and maintain a national control system, (…), in order to implement the provisions of this Treaty’.
148 Azarova (n 97).
