Sunday, March 17, 2013

Make it binding: include gender-based violence in the ATT

by Sofia Tuvestad, WILPF Sweden and Maria Butler, PeaceWomen/WILPF

As UN member states gather for the second Diplomatic Conference on an Arms Trade Treaty, they must recognize their responsibility to prevent human suffering and adopt a legally-binding treaty that applies human rights obligations to the international transfer of arms. An ATT that fails to accurately reflect existing international human rights law, and international humanitarian law, would be a catastrophic failure. 

The draft treaty text from July 2012 would make the treaty insufficient to prevent human suffering. One of the loopholes is the lack of clear and binding specific provisions with the aim of preventing armed gender-based violence. Despite the fact that over 75 member states supported the inclusion of gender-based violence provisions during the first ATT DipCon, the draft treaty fails to adequately respond to the gendered impact of international arms transfers. The adopted treaty must reflect states’ existing obligations under international law with respect to the prevention of gender-based violence.

The wording on gender-based violence in article 4(6)(b) of the draft ATT provides only for optional consideration of “feasible measures” to be taken in order to avoid the transferred weapons being used to commit acts of gender-based violence. The non-binding nature of article 4(6)(b) in the draft generates a legal contradiction, as gender-based violence is a violation of human rights law and could constitute a violation of international humanitarian law. 4(6)(b) fails to acknowledge this and is thus inconsistent with existing law. States’ existing obligations to respect, protect, and fulfil women’s rights are not subject to optional considerations. Therefore this contradiction must be eliminated.

In addition, the wording on gender-based violence in the ATT draft seems to rest on the assumption that states are able to carry out measures that would mitigate any risk of the arms in question being used to commit gender-based violence. This is unrealistic; most states would not be able to conduct these kinds of measures. When such a risk is identified, the arms should not be transferred. It must be a mandatory prohibition.

Thus WILPF calls for legally-binding gender provisions in the criteria of an ATT that require states not to authorize an international transfer of conventional arms where there is a substantial risk that the arms under consideration are likely to be used to perpetrate or facilitate acts of gender-based violence, including rape and other forms of sexual violence. There could be several options to make this happen. The wording on gender-based violence could be moved into article 4(2), along with provisions on international human rights and humanitarian law, making it legally consistent and subject to the same mandatory risk assessment process as well as to transfer prohibitions.

In addition, the preamble reference to women (currently paragraph 11) should be strengthened to recognize the gendered dimensions and impacts of the arms trade, particularly gender-based violence. The internationally accepted term gender-based violence is used in UN General Assembly and UN Security Council resolutions. It should consequently be used in an Arms Trade Treaty as well, to ensure that the treaty fully acknowledges the gender dimensions of armed violence from the perspective of both the perpetrator and the victim.

A gender-sensitive Arms Trade Treaty could significantly contribute to the prevention of gender-based violence, as well as promote the implementation of existing frameworks such as the UNSC agenda on Women, Peace and Security. A weak treaty will on the contrary do more harm than good. Consequently, member states should not consent to a compromised treaty that risks undermining existing obligations. Wide cross-regional support, legal precedent, and UN policies and mandates mean it is now critical that the ATT explicitly includes a strong legally binding reference that will be effective in preventing human suffering caused by armed gender-based violence.