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.