Brace yourselves for the sell-out

It was, in truth, an extraordinary day. Either more bumbling ineptitude or, just possibly, supreme diplomacy by a master of the dark arts, depending on your viewpoint.

© Jesper Waldersten

In the morning we were treated to the worst draft text produced thus far in this diplomatic conference (and that's up against some startling tough opposition). The Chair of the Main Committee dealing with criteria produced a new paper whereby the erstwhile criteria (now called parameters, consonant with their lessened status) were all moved into implementation. Thus, they would become a domestic matter of concern and not the subject of international obligation. The only obligation, in effect, was to conduct a risk assessment. And no consequences would follow for a proposed transfer that violated any of them. Nada.

As 20 or so delegations were still on the list to speak from two days ago following the circulation of his earlier paper, they addressed their comments to that paper which no longer seemed to exist. Another 90 minutes were thus wasted before the Chair could start calling upon a new list of speakers to elicit comment on his new, nihilistic rolling text. Fortunately, enough enlightened delegations had the nous and wherewithal to be fairly clear about what they thought of the subsidiarity of criteria and removal of almost all substantive obligations to deny proposed transfers that would violate what remained of those criteria. The Chair intervened rather haplessly to claim that it was just a structural change. Yeh, right.

The USA took the floor to make a rather shocking proposal whereby: “A State Party shall not authorize a transfer of conventional arms from or to its territory for the purposes of commission of genocide, crimes against humanity or war crimes constituting grave breaches of the Geneva Conventions or serious violations of common Article 3.” So the arms to be transferred have to be intended for the commission of genocide, crimes against humanity or war crimes in order not to be authorised. In fact, such a transfer is already a violation of customary international law, based on generally accepted principles and rules of State responsibility for internationally wrongful acts. But how are you going to prove intent? Does Russia intend Syria to use their weapons to commit crimes against humanity? How do we know, absent a tearful confession?

We thought things couldn't get worse. We were wrong. For then came the moment that many of us had dreaded from the start of this process. What was, at first glance, a much better Chair's text--in several ways--magically appeared on delegates tables. With the reported help of a European delegation, he had returned the parameters to a separate section, where they belong. So far, so good. And despite some remarkably slipshod English drafting, almost all of the criteria were back there. He'd even added in "gender-based violence, and violence against children"; "diverted to ... non-state actors"; and "violent crime as defined by the United Nations relevant instruments" to appease certain delegations. But then comes the bombshell:

"Where substantial risks exist, there shall be a presumption against authorisation."

A presumption. Not an "overriding presumption", as the rolling text was two days ago. Not even a strong presumption. Certainly not a requirement to deny. Just a presumption against authorisation. Which states are free to ignore. Whatever.

It goes on to say that each State Party "may consider" mitigation measures (so doesn't have to do so). No, no obligation here either, just a possibility. 

What this all means, in practice, is that arms transfers to Syria today would not be prohibited under this treaty if this text stands. There would certainly be a presumption against authorisation, but no obligation not to authorise, and thus any State Party would be acting entirely in accordance with the treaty if it decided, despite the presumption, to go ahead and transfer arms to a regime that is engaged in the commission of crimes against humanity, other serious violations of international human rights law, and, given the generalised existence now of a non-international armed conflict, serious violations of international humanitarian law. All it has to do is conduct a risk assessment first.

This was appalling enough, but there was worse to come. Delegation after delegation queued up to praise the Chair for listening to their concerns and lauding the praises of this new text. It was almost Kafkaesque; as if a judge's death sentence upon the head of an innocent man had been overturned on appeal and commuted to life imprisonment with hard labour. Crack out the champagne.

Hopefully in the cold light of day, enlightened delegations that have--or had--meaningful red lines will wake up and smell the cocoa. But don't bet on it. As David Levithan has written,

“It was a mistake,” you said. But the cruel thing was, it felt like the mistake was mine, for trusting you. 

Time to brace yourselves for the sell-out.