Sunday, March 17, 2013

Preventing a stillborn ATT

by Daniel Mack, Instituto Sou da Paz, Brazil

For over a decade, civil society has had high hopes for the Arms Trade Treaty. Not because of unreal expectations, but because of real needs—only a strong ATT will make any difference to actually “prevent the international trade in conventional arms from contributing to human suffering”.
As delegations begin the final dash towards the conclusion of a treaty text, those hopes live on, but coexist with significant fear that the ATT about to emerge could be stillborn. In many articles and passages, the draft treaty text, if unchanged, would arguably do harm to current international law and practices rather than ameliorating them. In that sense, having no ATT would be better than birthing a verifiably weak treaty. Primum non nocere.

While several parts of the draft threaten to render the status quo worse (Articles 3.3, 4.1, and 5.2 spring to mind), other articles in the draft seem to simply reaffirm the status quo of the international arms trade, which presumably the ATT intends to change—for the better. One of these is Article 2A (Scope, Covered Items).

The draft states in its Goals and Objectives that the ATT intends to regulate the “international trade in conventional arms” in order to prevent the aforementioned “human suffering”. Thus it stands to reason that, when it comes to which items to regulate, the treaty must include all those that cause that effect, not a select few. No human suffering is less important because caused with a different kind of weapon—especially when the difference between categories is often completely arbitrary.

As such, it becomes immediately obvious that the eight categories listed in Article 2A1 read less like the scope of an Arms Trade Treaty than they would for something like “A Few Major Offensive Weapon Systems Export Treaty”. Of course, we all know how we got here—the list is based on a Cold War-era transparency mechanism that has nothing to do with whether the arms are dangerous or the transfers should be authorized. Still, it remains surprising considering that eventual exclusions in Scope will be the most visible and obvious to the world’s citizens and media, not depending or being particularly flexible to nuances of legal interpretation. They are also extremely easy to fix, minus that pesky “political will” part.

Though some claim the line “within the following categories at a minimum” will allow countries to implement a more comprehensive scope, that argument seems disingenuous at best. The complete absence of an ATT also allows countries to make their control lists and transfer decisions as strict—or lax—as they want. The point is not to restate choices that already exist, but rather to give birth to clear international obligations—the “highest possible common standards”. (Language such as “as appropriate” and “as defined on a national basis” in Article 2A2 finishes the foot-shooting job.)

Anything less than “all conventional arms,” period, cannot be said to respect that basic objective of the ATT. Do smaller caliber artillery systems not have huge, and proven, potential for inflicting “human suffering”? Can armored vehicles, or military aircraft and helicopters not tagged with “combat” or “attack,” be purposely excluded while searching for the “highest possible” standards? Do unmanned aerial vehicles (“drones”) not threaten “international and regional peace, security and stability”?

These gaping holes in CRP.1 are mind-boggling and dangerous—and we haven’t even entered the essential areas of “ammunition or munitions” and “parts and components”. Much has been, and will undoubtedly continue to be said much more eloquently that I could, by African, Caribbean, and Latin American nations that know first-hand that small arms ammunition is the fuel of armed violence and conflict, and as such, cannot possibly be left partially excluded as in CRP.1.

But the list keeps growing—what about munitions for heavier weapons, bombs, mines, grenades, weaponized explosives of all sort? Only terrorists, criminals, rogue brokers, illegal armed groups, and unscrupulous industry will welcome an ATT that fails to include them as CRP.1 does. And think of genocidal or repressive regimes laughing as they procure all the parts and components they need for weapons they can mount at home to use to murder their own people …

All the aforementioned exclusions are particularly worrisome because they would cripple the norms for “pre-transfer” decisions on criteria needed to prevent “human suffering,” but usually stem from “post-transfer” concerns—often regarding transparency. In other words, most governments attempting or accepting the exclusion of any of the items mentioned above—and mind you, that was not a comprehensive list of items that can be used for severe humanitarian harm—will not argue that transferring the equipment is not risky in its implications, but rather they simply don’t want to be obliged to report on them. Or, worse, they have been complacent and accepted a short-hand for “conventional arms,” for the sake of political convenience, that bears little resemblance with the actual category of equipment that should constitute Covered Items.

At long-last birth, the ATT shall have many mothers. At the risk of sounding overly dire, which my own mother will be familiar with, in Scope the Treaty either includes the items mentioned above—all of which have been responsible for myriad documented cases of “human suffering” —or none of those mothers will be able to be particularly proud parents.