Monday, July 23, 2012

The rule of law in criteria

by Katherine Prizeman, Global Action to Prevent War
Thursday saw lively debate over the status and nature of the parameters section of the arms trade treaty (ATT) with two draft texts from the Chair of Main Committee I, one of which moved the specific risk assessment criteria to the national implementation section. While the positions of delegations varied from those that supported the move to a large number of countries that did not, the question still remains how robust and comprehensive the list of criterion will be whether or not they are placed under implementation (while noting that such a move would be very detrimental to the effectiveness of the treaty).
In order to compile the most vigorous list of criteria that will be consistently and effectively implemented in national risk assessments, it is essential that each criterion be based, as closely and frequently as possible, on existing international law obligations as well as well-established international norms. Ensuring that the criteria are both legally-binding and legally-based will strengthen the validity of the criteria as well as combat the skepticism and alarm from many delegations around the possibility of political manipulation or subjective interpretation of the individual criterion.

The rule of law must permeate the ATT in all its sections in order to reinforce that the treaty must be a legally-binding instrument that will hold states accountable to international legal obligations and, thus, prohibit transfers of conventional arms when there is serious risk of violations of international human rights law (IHRL), international humanitarian law (IHL), and other international obligations set forth under UN auspices. As the International Committee of the Red Cross (ICRC) noted on Thursday, a treaty based on parameters that have no firm linkages to existing international law and, rather, represent a list of suggested items to consider when deciding whether or not to export weapons, is potentially harmful. If under the treaty states are permitted to continue with a transfer despite knowledge that violations of IHL exist, the ATT would actually undermine international law obligations under the Geneva Conventions.

Many delegations, including Venezuela and Egypt, have expressed concern that an ATT based on subjective criteria will lend itself to political manipulation and contribute to furthering inequity between exporter and importer states. Other delegations, including Indonesia and Pakistan, have made clear that there must be an inherent balance between the rights and responsibilities of importer and exporter states. Bearing in mind this sensitivity around the issue of fair treatment of all states and to practically address the widespread aversion to using Treaty criteria to reinforce an exclusive “exporters club,” it is important to tether the criteria for transfers to existing international norms and international law so that there is little room for prejudice and discrimination. The focus of the ATT must not deteriorate into political machinations over subjective criteria, but must remain steadfast on creating and implementing clear, consistent legally-binding parameters consistent with existing UN instruments.

Where appropriate, references to “UN relevant instruments” should be included to ensure consistent and objective interpretation of the criteria by all states parties.  Moreover, criteria directly referencing serious violations of IHL and IHRL as well as violations of international criminal law such as genocide, war crimes, and crimes against humanity must be a priority and have no qualifiers such as “applicable”. References to corruption should be based on language in the UN Convention against Corruption as well as the Convention on Transnational Organized Crime. The criterion of gender-based violence should make reference to relevant tools such as UN SecurityCouncil Resolutions 1325, 1820, 1888, and 1889; the Convention on theElimination of All Forms of Discrimination against Women (CEDAW); and other UN-related organs and documents. Due to a lack of universal definition for terrorism, a reference to terrorism could be linked to a clear criterion on diversion citing language from the UN Guidelines on International Arms Transfers that uses the phrase “diversion of arms to unauthorized destinations and persons”. As noted by the delegate of New Zealand on Friday morning, “non-state actor” is used in diverse contexts of the UN and it would be unclear what the precise meaning for this term would be in the ATT. Such ambiguity should be avoided. Furthermore, criteria related to the undermining of international peace and security and aggravating, prolonging, and provoking aggressions or breaches of peace could be framed in the context of the norms and obligations enshrined in Article 1 of UN Charter. Likewise, a criterion related to UN Security Council arms embargoes, as has been supported by many delegations such as the EU and US, would be completely appropriate.

Formulating clear, legally-based criteria will enable states parties to apply them consistently with little room for political haggling on potential politicization. International law provides an important basis for this treaty and should remain at the heart of its provisions so that all states parties can be held sufficiently accountable.