|(c) Jesper Waldersten|
The renewed United Nations Conference on the Arms Trade Treaty will open on 18 March 2013 for a total of nine days. Optimism is running high that despite the very short time frame and the unseemly collapse of negotiations in July 2012, an agreement can be secured this time around.
In his opening address to the July 2012 diplomatic conference, the UN Secretary-General said that it was ‘a disgrace’ that no multilateral treaty ‘of global scope’ addresses conventional arms transfers. He is absolutely right. But we don’t need an agreement for the sake of an agreement, we need an agreement that will work. This means that within a decade human rights abuses arising from the irresponsible transfer of weapons should have measurably reduced.
How can this be achieved? First and foremost by closing the main loopholes in the July 2012 text that will form the basis of negotiations. There are at least five in our view.
- First and foremost, Article 5, paragraph 2 as a whole, or at the very least the first sentence of the paragraph which states that ‘The implementation of this Treaty shall not prejudice obligations undertaken with regard to other instruments’, and should be deleted. It is potentially the single biggest loophole in the entire treaty. It appears to allow a state party to simply contract out of its obligations by deciding, for example, that a state-to-state contract to sell or otherwise transfer conventional arms will override the obligations in Article 4 and potentially even Article 3 of the draft Arms Trade Treaty (ATT).
- Second, Article 23 (Relations with States not party to this Treaty) should be deleted. The provision implies that the ATT would generally only apply between States Parties. Therefore, to escape the reach of its provisions, a state that wishes to misuse arms simply has to not ratify the treaty.
- Third, the wording of Article 3, paragraph 3 of the July 2012 text needs to be brought in line with customary law. This requires two changes. Customary law on state responsibility requires only knowledge that a proposed arms transfer would facilitate international crimes for complicity to be established. The draft provision requires specific intent, a far higher standard. The wording should be redrafted to meet the lower customary law standard.
- Fourth, the other change to Article 3, paragraph 3 concerns war crimes. Under customary law, war crimes committed in a non-international armed conflict include indiscriminate attacks (not just intentional attacks against civilians but also those that cause excessive civilian harm). Common Article 3 of the 1949 Geneva Conventions — to which the July 2012 text specifically refers — is limited to mistreatment of persons in the power of a party to the conflict (i.e. abuse of internees, detainees, or prisoners). The conduct of hostilities in an armed conflict is more comprehensively regulated under international custom and the wording of the draft provision needs to reflect this.
- Fifth, the term ‘overriding’ in Article 4, paragraph 5, should be replaced to ensure that the standard does not depend on interpreting an ill-defined notion of ‘peace and security’. Alternatively, peace and security should be explicitly de-linked from the determination that a proposed transfer that would likely be used for serious violations of human rights or humanitarian law should not be authorised.
To suggest that the stakes are high for this diplomatic conference is almost trite. The United Nations disarmament machinery is once more on trial (and the jury is unlikely to be forgiving its trespasses). Moreover, certain states appear willing to sacrifice principle in order to secure an agreement, any agreement. But if this is not to amount to Neville Chamberlain in 1938 brandishing a piece of paper on his return from Munich and proclaiming ‘peace in our time’ they will need to be given some backbone (and warned of the political consequences of lack of courage). Civil society will need to be especially vigilant and effective in this regard. As Augustus Hare famously remarked, ‘Half the failures off this world arise from pulling in one’s horse as it is leaping.’ Let us not make that mistake. Yes, friends, the stakes are high.