by Ray Acheson, Reaching Critical Will of WILPF
As delegations negotiating the arms trade treaty (ATT) met behind closed doors on Wednesday, civil society was busy advocating for key changes in the draft text distributed on Tuesday. As it stands, the text is unacceptable to those governments and NGOs demanding a robust treaty that would be an effective tool for preventing the deadly consequences of the poorly regulated international arms trade.
Yesterday’s editorial also highlighted some of the problems with the risk assessment process outlined in the treaty. This process is supposed to ensure that licensing authorities and governments investigate to see if the arms under question are likely to be used to commit violations of international humanitarian law (IHL) or international human rights law (IHRL). The current draft text does not mention many of the other crucial elements that must be assessed, such as the risk that the weapons will be used to commit or facilitate acts of gender-based violence or violence against children, or the risk they will be used to undermine peace, security, or development, or of the risk that they might be diverted to the illicit market. Furthermore, the risk assessment process is based entirely on the “view” of the state, thus allowing each government to interpret the risk and the criteria in its own way, without necessarily taking into account information provided by third party sources.
Another problem is that the treaty as currently drafted does not allow states to cancel arms transfer contracts or military cooperation agreements even after the ATT enters into force, regardless of whether not those transfers would violate the treaty (article 6.2). This undermines the purpose of the treaty and is inconsistent with its other provisions. It provides a giant loophole for states that want to continue selling weapons to governments even when it is known that the weapons will be used to commit violations of IHL or IHRL or even genocide and other crimes.
The scope of the treaty is also much too weak (article 2). Not only does not include ammunition (as was covered in several articles of ATT Monitor Vol. 5, No. 16), but it is also far too limited in terms of major weapons systems covered. It includes the seven categories of conventional weapon systems in the UN Register on Conventional Arms, but as several delegations have pointed out, these categories are not broad enough to capture all relevant conventional weapons. These categories also do not include any law enforcement weapons, which are often used to repress and kill civilians during armed conflict. The scope also does not sufficiently provide for regulation of transfers of parts and components, nor at all for relevant technology and equipment. This means that these items, which help maintain or upgrade weapons systems after the initial transfer of arms has been made, will not be regulated by the treaty.
The draft text’s measures on regulating arms brokers are likewise completely insufficient. Illicit brokers are often key players in transferring weapons and ammunition “to illegitimate users or destinations, including countries under UN arms embargo and conflict zones,” notes Small Arms Survey. Such brokers “rely on a general lack of governmental control and screening over their activities.” Article 9 of the draft ATT text merely requires states parties to “take appropriate measures, within national laws and regulations,” to control brokering in their jurisdiction. One of the key original demands of for ATT by civil society and many governments is that it tackle the problem of illicit brokering by establishing international standards for holding companies and individuals accountable. Such standards “should include regulating their conduct and holding them liable where breaches of international law have occurred,” suggests Oxfam’s 2010 report, Brokers Without Borders. In addition, an ATT “could provide the framework to resolve jurisdictional issues allowing illicit brokers to avoid prosecution and encourage greater cooperation between states to stamp out such activities.”
Many other elements of the draft text need serious work. The goals and objectives of the draft treaty only references preventing diversion of arms to illicit markets or unauthorized end-users through improvement of arms trade regulations (article 1). But this is only one goal of the treaty; the other is supposed to be regulating arms transfers so that the arms are not misused by any end-user, not just illicit ones.
Another big problem is that the terms trade or export are used predominantly in the treaty. The term transfer would be more appropriate in order to capture the full range of potential activities that the ATT should and must cover. The word “trade” in particular is insufficient, as it means that weapons that are transferred as gifts or loans or through military assistance programmes would be exempt from the regulations mandated by the treaty.
The list of criticisms could go on and on. The bottom line is that this draft text is unacceptable. As delegations enter the final rounds of negotiations in this draft treaty, they must take into the account the motivating factor for all of their work: to save lives. This must be put above the desire of the arms manufacturers, brokers, and exporters to make money off of armed violence. The current draft text will not save lives, nor will it reduce the amount of human suffering caused by the poorly regulated arms trade. In fact, the document as currently written would undermine the rule of law, providing loopholes and legal cover for irresponsible arms transfers. It would be better to have no treaty at all than a treaty like that.